Citation Nr: 0811318 Decision Date: 04/04/08 Archive Date: 04/14/08 DOCKET NO. 06-22 777 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to a higher assignable rating for post-traumatic stress disorder (PTSD), currently evaluated 50 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. N. Moats, Associate Counsel INTRODUCTION The veteran served on active duty from July 1948 to May 1952. This matter comes to the Board of Veterans' Appeals (Board) from an August 2005 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The veteran testified at a Board hearing at the local RO in November 2006. At the hearing, the Board granted the veteran's motion to advance his appeal on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2007). The Board previously remanded this case for further development in July 2007. By rating decision in October 2007, the RO increased the veteran's PTSD disability rating to 50 percent, effective August 27, 2007. However, where there is no clearly expressed intent to limit the appeal to entitlement to a specified disability rating, the RO and Board are required to consider entitlement to all available ratings for that condition. AB v. Brown, 6 Vet.App. 35, 39 (1993). The issue therefore remains in appellate status. 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 veteran is seeking an increased disability rating for his service-connected PTSD. The Board notes that additional evidence has been received of record which has not been reviewed by the RO, including: a November 2007 VA medical letter from A.M, M.D.; an undated letter from L.H., PhD of the Vet Center; and lay statements from the veteran and his spouse and son. As noted by the veteran's representative in its February 2008 brief, the October 2007 supplemental statement of the case, which was issued in January 2008, does not address this evidence. The appellate scheme set forth in 38 U.S.C.A. § 7104(a) (West 2002) contemplates that all evidence will first be reviewed at the RO so as not to deprive the claimant of an opportunity to prevail with his claim at that level. See generally Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). Initially, in its brief, the veteran's representative appeared to waive RO consideration of this evidence. However, on page 2, the representative clearly listed the additional evidence and noted that the evidence was not considered in the supplemental statement of the case. In turn, the representative specifically requested that the case be remanded so that to RO could consider this evidence. Accordingly, although the Board regrets further delaying appellate review of this issue, this case must be returned to the RO for review of the additional evidence. Further, per the July 2007 remand, the veteran was afforded a VA examination in August 2007. At that examination, the veteran denied actual suicidal thoughts and reported occasional nightmares. However, the subsequent November 2007 VA letter from Dr. A.C. noted that the veteran had frequent thoughts of suicide over the past several months and increased sleep latency. While a new examination is not required simply because of the time which has passed since the last examination, VA's General Counsel has indicated that a new examination is appropriate when there is evidence of an increase in severity since the last examination. VAOPGCPREC 11-95 (1995). Thus, based on the new medical evidence indicating a possible increase in the severity of symptoms, the Board finds that a new VA examination is necessary to determine the extent of the veteran's PTSD. Although in its brief, the veteran's representative claims that outpatient treatment records from the VA clinic in Beaufort, South Carolina have not been associated with the claims file as directed in the Board's prior remand, the Board notes that outpatient treatment records from the VA Medical Center (VAMC) in Charleston, South Carolina have been included in the claims file through August 1, 2007, and these records include Beaufort outpatient clinic records. Nevertheless, the veteran has indicated that he continues to seek individual and group treatment at the VA. Thus, in light of the need to remand this case for other matters, the RO should obtain current VA treatment records from the Charleston VAMC, including Beaufort outpatient clinic, for the period from August 1, 2007, to the present. Lastly, the Board also notes that during the pendency of this appeal, on January 30, 2008, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the case of Vazquez-Flores v. Peake, 22 Vet.App. 37 (2008), which outlined the notice requirements for an increased- compensation claim under 38 U.S.C.A. § 5103(a). Since the Board is remanding this case for other matters, it is reasonable for the RO to give additional VCAA notice to comply with Vazquez. The case is hereby REMANDED for the following actions: 1. The RO should provide proper VCAA notice with respect to an increased rating claim that includes: (1) notification that 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; (2) at least general notice of any specific measurement or testing requirements needed for an increased rating if the Diagnostic Code contains rating criteria that would not be satisfied by demonstrating only a general worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life; (3) notification that if an increase in disability is 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 0% to as much as 100% (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; and (4) notification 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, as outlined by the Court in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). 2. The RO should obtain the veteran's treatment records from the Charleston VAMC, including the Beaufort outpatient clinic, for the period of August 1, 2007, to the present. If such records are unavailable, it should be clearly noted in the claims file. 3. The veteran should be scheduled for an appropriate VA examination to determine the current severity of his PTSD. The claims folder must be made available to the examiner and reviewed in conjunction with the examination. The examiner should be asked to comment on the severity of the veteran's PTSD, to include whether the veteran has any occupational or social impairment due to his service-connected PTSD. Examination findings should be reported to allow for evaluation of PTSD under 38 C.F.R. § 4.130, Diagnostic Code 9411 (2007). A GAF score should be reported. 4. After completion of the above and any further development deemed necessary by the RO, the RO should review the record, to specifically include all evidence received since the October 2007 supplemental statement of the case, and determine whether an increased rating for PTSD is warranted. Unless the benefit sought is granted in full, the veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an 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. 2007). _________________________________________________ ALAN S. PEEVY 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).