Citation Nr: 0811303 Decision Date: 04/04/08 Archive Date: 04/14/08 DOCKET NO. 99-17 686 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an increased disability rating in excess of 30 percent disabling for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Nancy L. Foti, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K.A. Kennerly, Associate Counsel INTRODUCTION The veteran served on active duty from August 1969 to August 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 1999 rating decision of the Detroit, Michigan, Regional Office (RO) of the Department of Veterans Affairs (VA), which confirmed and continued a 30 percent disability rating for the veteran's PTSD. The veteran participated in a decision review officer hearing in May 2000. A transcript of that proceeding has been associated with the veteran's claims file. In August 2001, the Board denied the veteran's claim of entitlement to a disability rating in excess of 30 percent for his PTSD. The veteran subsequently appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In August 2002, the Court granted the Joint Motion filed by VA General Counsel and the veteran's representative to remand the Board's decision and to stay further proceedings. On May 1, 2003, the United States Court of Appeals for the Federal Circuit invalidated, in part, the regulations which had permitted the Board to develop the evidence without having to remand the appeal to the RO. See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (2003). Therefore, upon returning to the Board, the veteran's claim was remanded in July 2003 for additional development. The Board remanded the veteran's claim again in May 2004 for additional development. In an August 2005 decision, the Board denied an evaluation in excess of 30 percent for the veteran's service-connected PTSD. The veteran again appealed to the Court. In February 2006, VA General Counsel and the veteran's representative filed a Joint Motion asking the Court to remand the Board's decision and to stay further proceedings. Principally, the parties agreed to remand this matter to the Board to allow the Board to rule on the veteran's motion for a 60-day extension of time to submit additional evidence for his claim and to vacate the August 2005 Board decision. In March 2007, the Board vacated the prior August 2005 decision that denied the veteran's claim. 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 on his part. REMAND The Board is cognizant of the fact that the veteran's case has been in adjudicative status since 1999, and it has already been remanded in the past. Consequently, the Board wishes to assure the veteran that it would not be remanding this case again unless it was essential for a full and fair adjudication of his claim. The Board notes that during the pendency of the veteran's appeal, the Court issued decisions in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) and Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). The veteran has not been afforded appropriate notice in compliance with these cases regarding VA's duties to notify and assist. It also appears there are missing VA treatment records from January 2004 to the present. The RO/AMC must obtain any records available. The duty to assist includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The veteran was last afforded a VA medical examination in January 2004 to assess the severity of his PTSD. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Reexamination will be requested whenever VA determines that there is a need to verify either the continued existence or the current severity of a disability. See 38 C.F.R. § 3.327(a) (2007). Generally, reexaminations are required if it is likely that a disability has improved, if the evidence indicates that there has been a material change in a disability, or if the current rating may be incorrect. Id. In this case, there is objective evidence indicating that there has been a material change in the severity of the veteran's PTSD since he was last examined. Thus, a new examination must be completed. Accordingly, the case is REMANDED for the following action: 1. The veteran should be afforded notice of VA's duties to notify and assist compliant with the recent holdings of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) and Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Specifically, the veteran should be informed of how VA determines disability ratings and effective dates. See Dingess/Hartman, supra. The veteran should also be specifically informed of VA's duties to notify and assist compliant with Vazquez. The letter should include the following: (A) notification to 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; (B) 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; (C) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life; (D) the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation, e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. 2. The RO/AMC should obtain any available VA treatment records from 2004 to the present. If no records are available, this must be noted in the claims file. 3. After obtaining any relevant evidence associated with the paragraphs above, the veteran should be scheduled for a new VA PTSD examination in order to determine the severity of his PTSD. The examiner should review pertinent documents in the veteran's claims file in conjunction with the veteran's examination and note as much in the examination report. The examiner should discuss the nature and current severity of the veteran's PTSD, providing a thorough rationale for any opinion reached. The examiner should specifically address the veteran's multiple hospitalizations. 4. After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim for an increased disability evaluation for PTSD should be readjudicated. If the claim remains denied, a supplemental statement of the case should be provided to the veteran and his representative. After they have had an adequate opportunity to respond, this issue should be returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See 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 2002 & Supp. 2007). _________________________________________________ BARBARA B. COPELAND 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. See 38 C.F.R. § 20.1100(b) (2007).