Citation Nr: 0811881 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 05-24 710 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an initial disability evaluation in excess of 10 percent for service-connected post-traumatic stress disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Michael A. Pappas, Counsel INTRODUCTION The veteran had verified active duty service from January 1968 to January 1971, and from September 1979 to November 1983. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision of the Department of Veterans Affairs (VA) Waco, Texas, Regional Office (RO) that, in pertinent part, granted entitlement to service connection for post-traumatic stress disorder, and assigned a 10 percent disability rating, effective from February 2004. The veteran ultimately perfected an appeal as to the rating assigned. 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 Service connection for post-traumatic stress disorder was granted by the RO in October 2004, based expressly upon the veteran's receipt of the Purple Heart in service and the findings of a September 2004 VA psychiatric examination that resulted in the diagnosis of post-traumatic stress disorder. According to the October 2004 rating decision at issue, the 10 percent disability rating was assigned based upon subjective complaints of difficulty getting along with people, poor sleep, nightmares, crying spells, depression, and suicidal thoughts documented in the foregoing VA examination. VA Medical Center (VAMC) records between 2002 and 2007 not only document post-traumatic stress disorder, they also document complaints, treatment, and diagnosis of the veteran for several other neuropsychiatric disorders, including dysthymic disorder, depression, major depressive disorder, and the residuals of three cerebrovascular accidents. During that time, the veteran participated on a regular basis in group therapy counseling at the VAMC for post-traumatic stress disorder and depression. In August 2007, the veteran underwent a second VA psychiatric examination specifically for the evaluation of his service- connected post-traumatic stress disorder. Although the veteran reported some of the same psychiatric symptoms that had been associated with post-traumatic stress disorder in the earlier September 2004 VA examination, following a review of the claims folder and the examination of the veteran, the examining psychiatrist in the August 2007 VA examination diagnosed on Axis I a "reported history of post-traumatic stress disorder; and major depressive disorder." These findings not only question the severity of the symptomatology that can be associated with service-connected post-traumatic stress disorder, they also call into question whether the veteran's post-traumatic stress disorder has, in fact, resolved. It is essential both in the examination and in the evaluation of the disability, that each disability be viewed in relation to its history. 38 C.F.R. § 4.1 (2007). Fulfillment of the statutory duty to assist includes the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991). Based upon the differential diagnoses in the claims file for the rating period at issue, the Board finds that additional examination and clarification are necessary to the proper assessment and adjudication of the veteran's claim for an increased rating for service-connected post-traumatic stress disorder. The examiner should review the evidence of record, and specifically differentiate, to the extent possible, between the psychiatric symptoms attributable to the veteran's service-connected PTSD and those associated any other psychiatric disorder. See Mittleider v. West, 11 Vet. App. 181 (1998). Accordingly, the case is REMANDED for the following action: 1. Schedule the veteran for a VA psychiatric examination by an appropriate medical practitioner who has not previously examined the veteran to determine the nature and extent of the veteran's service-connected post- traumatic stress disorder. The claims file and a separate copy of this remand must be made available to the examiner in conjunction with the examination. Any further indicated special tests and studies should be conducted. The examiner should specifically distinguish these symptoms and pathology from any nonservice- connected psychiatric disorder, if possible and assign a Global Assessment of Functioning (GAF) score pertaining to the veteran's PTSD only. If the psychiatrist cannot differentiate between symptoms due to PSTD and symptoms due to the veteran's nonservice-connected psychiatric disorders without resorting to speculation, he or she should so state. The examiner should comment upon the findings of the August 2007 VA examination in which post-traumatic stress disorder was not found. The psychiatrist is also asked to provide a rationale for any opinion expressed. 2. Thereafter, the claims file should be reviewed to ensure that all of the foregoing requested development has been completed. 3. After undertaking any development deemed essential in addition to that specified above, readjudicate the issue of entitlement to a disability evaluation in excess of 10 percent for service- connected post-traumatic stress disorder. Consideration should be given to Fenderson v. West, 12 Vet. App. 119, 126 (1999) as it applies to "staged" ratings. If the benefit requested on appeal is not granted to the appellant's satisfaction, issue a supplemental statement of the case (SSOC) to the veteran and his representative and allow a reasonable period of time for a response. Thereafter, the case should be returned to the Board for final appellate review, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the appellant until he is notified by the VBA AMC; however, the veteran is hereby notified that failure to report for any scheduled VA examination(s) without good cause shown may adversely affect the outcome of his claims, and may result in a denial. 38 C.F.R. § 3.655 (2007). The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ M. E. LARKIN 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).