Citation Nr: 0811254 Decision Date: 04/04/08 Archive Date: 04/14/08 DOCKET NO. 07-02 558 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for the service-connected post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The veteran had active military service from April 1963 to August 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2005 RO rating decision that granted service connection for PTSD and assigned an initial evaluation of 10 percent effective on November 26, 2004. As the claim before the Board involves a request for higher initial rating following the grant of service connection, the Board has characterized the issue in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for disabilities already service- connected). The veteran testified before the undersigned Veterans Law Judge at a hearing held at the RO in August 2007. During that hearing, he presented documentary evidence in the form of service treatment records, service personnel records, and post-service treatment records. The Board has accepted this additional evidence for inclusion into the record on appeal. See 38 C.F.R. § 20.800. The appeal is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action is required on his part. REMAND The evidence of record shows that the service-connected PTSD was significantly aggravated by an automobile accident in August 2005. Additional disability is not compensable when a service- connected disability is aggravated by a nonservice-connected disability. Johnston v. Brown, 10 Vet. App. 80, 86 (1997). However, the Board is precluded from differentiating between the symptomatology attributable to a nonservice-connected disability and a service-connected disability in the absence of medical evidence that does so. Mittleider v. West, 11 Vet. App.181, 182 (1988) (per curiam), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996). The Board notes in this regard that the last VA examination of record was performed in April 2005, prior to the automobile accident. The Board finds that a new examination is required to determine the present level of disability attributable to the service-connected PTSD. The veteran is hereby advised that failure to report to the scheduled examination may result in denial of the claim. See 38 C.F.R. § 3.655. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant or the death of an immediate family member. If the veteran fails to report to the scheduled examination, the RO should obtain and associate with the claims file copy(ies) of the notice(s) of the examination sent to him by the pertinent VA medical facility at which the examination is to take place. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with VCAA and its implementing regulations. Specifically, the RO should advise the veteran of the elements required to establish entitlement to increased rating per Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), Hart v. Mansfield, 21 Vet. App.505 (2007), and Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), and should also advise the veteran to send VA all evidence in his possession not already of record that is relevant to his claim. Hence, in addition to the actions requested hereinabove, the RO should also undertake any other development and/or notification action deemed warranted by VCAA prior to adjudicating the claim on appeal. In that regard, the veteran testified in August 2007 that he continues to undergo regular PTSD counseling through VA. The most recent treatment records in the claims file end in March 2005. The RO should obtain the VA counseling records after March 2005 and associate those records with the file. Accordingly, this matter is hereby REMANDED to the RO for the following actions: 1. The RO should sent to the veteran a letter advising him of the elements required by Dingess/Hartmann, Hart, and Vazquez-Flores as cited above regarding claims for increased rating. The letter should advise the veteran of the respective duties of VA and the claimant in procuring evidence, and should invite the veteran to provide VA with any evidence in his possession relevant to his claim that is not already of record. 2. Whether or not the veteran responds to the letter above, the RO should obtain the veteran's VA treatment records since March 2005 and associate any other identified treatment records with the claims file. 3. The RO then should schedule the veteran for examination by a psychiatrist at an appropriate VA medical facility in order ascertain the current severity of the service-connected PTSD. The entire claims file must be made available to the physician designated to examine the veteran, and the examiner should indicate in the report that the entire file was reviewed. The examination report should include discussion of the veteran's documented psychiatric history as shown in the medical record, as well as the veteran's subjective assertions regarding his history and symptomatology. All appropriate medical diagnostics should be accomplished, and all clinical findings should be reported in detail. The examiner should provide a clinical assessment of the severity of the veteran's PTSD, including GAF, since the last VA psychiatric examination of record in April 2005. The examiner should, if possible, differentiate between the severity of symptoms attributable to military stressors versus those attributable to post-service events. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should so indicate. 4. To avoid future remand, the RO must ensure that the required actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, corrective action should be undertaken before the claims file is returned to the Board. See Stegall, 11 Vet. App. 268. 5. After completing the required actions, and any additional notification and/or development deemed warranted, RO should readjudicate the veteran's claim in light of all pertinent evidence and legal authority. If any benefit sought on appeal is not granted, the RO should furnish to the veteran and his representative an appropriate SSOC that includes citation to and discussion of all additional legal authority considered, as well as clear reasons and bases for all determinations, and should afford him a reasonable opportunity to respond thereto. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The purpose of this REMAND is to afford due process; it is not the Board's intention to imply whether the benefits requested should be granted or denied. The veteran need take no action unless otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2007). _________________________________________________ STEPHEN L. WILKINS 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).