Citation Nr: 0810132 Decision Date: 03/27/08 Archive Date: 04/09/08 DOCKET NO. 06-03 576A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to the assignment of an initial rating in excess of 50 percent for post-traumatic stress disorder with major depressive disorder. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The veteran and his wife ATTORNEY FOR THE BOARD Rebecca N. Poulson, Associate Counsel INTRODUCTION The veteran served on active duty from February 1966 to February 1969. This matter is before the Board of Veterans' Appeals (Board) from a March 2005 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, which granted service connection for post-traumatic stress disorder (PTSD) with major depressive disorder, rating it 50 percent from August 19, 2004. The veteran timely filed a Notice of Disagreement (NOD) in March 2005. The RO provided a Statement of the Case (SOC) in January 2006 and thereafter, in February 2006, the veteran timely filed a substantive appeal. In a May 2007 rating decision, based on evidence of in-patient treatment, the RO granted a temporary disability rating of 100 percent from February 20, 2007 to April 30, 2007, and continued the prior 50 percent rating from May 1, 2007. In January 2008, the veteran and his wife testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims folder. 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 finds that additional development is warranted to address the merits of the appellant's appeal for an initial or staged rating in excess of 50 percent for his PTSD. 38 C.F.R. § 19.9 (2007). The veteran contends that his PTSD is more disabling than currently evaluated. Upon review of the claims file, the Board finds that, while the veteran was afforded a VA psychiatric examination to evaluate the severity of his PTSD in February 2005, he was subsequently admitted to a VA Medical Center's mental health unit in 2007. Given this in-patient hospitalization for PTSD after the last VA psychiatric examination, the veteran's allegation of increased impairment due to PTSD since the 2005 examination and his dissatisfaction with that evaluation expressed at a recent January 2008 Travel Board hearing, a more current and thorough psychiatric examination is necessary to adequately determine the current severity of his PTSD. See 38 C.F.R. §§ 3.326, 3.327; see also, e.g., Caffrey v. Brown, 6 Vet. App. 377 (1995); Green v. Derwinski, 1 Vet. App. 121 (1991). The Board further notes that, in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), the Court found that, at a minimum, adequate VCAA notice requires that VA notify the claimant that, to substantiate such a claim: (1) the claimant must provide, or ask VA 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; (2) if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant; (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and (4) the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. In this case, the claim for a higher rating for PTSD is a downstream issue of the original service connection claim adjudicated in the March 2005 rating decision. VA's General Counsel has concluded that, if, in response to notice of its decision on a claim for which VA has already given the § 5103(a) notice, VA receives a notice of disagreement that raises a new issue, § 7105(d) requires VA to take proper action and issue a statement of the case if the disagreement is not resolved, which was done in this case, but § 5103(a) does not require VA to provide notice of the information and evidence necessary to substantiate the newly raised issue. VAOPGCPREC 8-2003 (Dec. 22, 2003). Notwithstanding the foregoing, the Board finds that, since the claim for a higher initial rating must be remanded for the development noted above, the RO should provide VCAA notice that satisfies Vazquez-Flores, supra. Accordingly, the case is REMANDED for the following action: 1. Furnish the veteran and his representative a corrective VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) that includes an explanation as to the information or evidence needed to establish a higher rating, as outlined by the Veterans Court in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). 2. Thereafter, the veteran should be afforded a VA psychiatric examination to determine the current severity of his service-connected PTSD. The examination should take place at either Shreveport or New Orleans by a different psychiatrist than the one who conducted the February 2005 examination. A score on the Global Assessment of Functioning Scale should be assigned based on current impairment of functioning due exclusively to PTSD. Any tests that are deemed necessary should be accomplished. The claims folder should be furnished to the VA examiner for review and the report compiled by such examiner should indicate whether the claims folder was made available and reviewed. 3. After completion of the directed development, and any additional development that is indicated by the current state of the record, re-adjudicate the veteran's claim. If the veteran remains dissatisfied with the decision, issue an appropriate supplemental statement of the case and forward the case to the Board for final adjudication. 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. 2007). _________________________________________________ R. F. WILLIAMS 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).