Citation Nr: 0814434 Decision Date: 05/01/08 Archive Date: 05/12/08 DOCKET NO. 05-17 636 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wilmington, Delaware THE ISSUES Entitlement to an initial rating in excess of 50 percent disabling for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Robert J. Burriesci, Associate Counsel INTRODUCTION The veteran served on active duty from October 1967 to October 1971, including combat service in the Republic of Vietnam. The veteran's decorations include the Navy Achievement Medal with "V" device. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which granted service connection for PTSD and assigned an initial 30 percent disability rating, effective February 15, 2002. Jurisdiction over the veteran's case was subsequently transferred to the Wilmington, Delaware RO. During the pendency of this appeal, by rating action of the RO dated in March 2005, the RO determined that the veteran's service-connected PTSD warranted an increased disability rating of 50 percent, effective February 15, 2002. Applicable law provides that absent a waiver, a claimant seeking a disability rating greater than assigned will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and that a claim remains in controversy where less than the maximum available benefits are awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). The veteran has not withdrawn the appeal as to the issue of a disability rating greater than assigned, and the issue therefore remains in appellate status. When this matter was before the Board in April 2007, the Board denied the veteran's claim of entitlement to an initial evaluation in excess of 50 percent for his PTSD and remanded his claim of entitlement to service connection for hypertension. The veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court) insofar as it denied entitlement to a higher initial rating for his PTSD. In a November 2007 order, the Court granted the parties' joint motion for remand, vacating the Board's April 2007, as to PTSD claim and remanded the case for compliance with the terms of the joint motion. Because the development requested by the Board in the April 2007 remand regarding the veteran's claim of entitlement to service connection for hypertension has not yet been completed, the RO has not certified this issue back to the Board. Since the veteran's hypertension claim remains in remand status, the Board will not address this issue in this remand. In written argument dated in August 2006, the veteran's accredited representative raised the issue of entitlement to an effective date earlier than February 15, 2002 for the grant of service connection for PTSD. As this matter is not currently developed or certified for appellate review, it is referred to the RO for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify you if further action is required on your part. REMAND The veteran seeks an initial rating in excess of 50 percent disabling for PTSD. The veteran's original claim for service connection for PTSD was received by the RO in February 2002. By rating action of the RO dated in August 2003, his claim was granted and a disability rating of 30 percent was assigned effective as of the date of claim. Subsequently, by a rating action of the RO dated in March 2005, a disability rating of 50 percent was assigned effective as of the date of the claim. A review of the claims folder reveals that the veteran has been treated by Andrew Jensen, PhD, since October 2002. In an evaluation dated in February 2003, Dr. Jensen noted that the veteran showed a great deal of anxiety when describing his combat experiences and loss in Vietnam. The veteran reported that he has worked several jobs, the most recent in computer networking. Dr. Jensen noted that the veteran suffered from sleep interruption and nightmares, social withdrawal, hyperstartlization, unpredictable outbursts of rage followed by periods of depression, suicidal ideation, and isolation from all social relationships. The veteran described periods of mental confusion when he was momentarily uncertain of where he was and what he was doing. Dr. Jensen diagnosed the veteran with PTSD, chronic, severe and assigned a Global Assessment of Function (GAF) score of 37 with the highest in the past year of 49. Subsequent psychological evaluations by Dr. Jensen, dated in October 2003, August 2004, and September 2005, reveal similar symptoms to those reported in October 2002 and all assign a GAF score of 35. In January 2003, the veteran underwent a VA Compensation and Pension (C&P) PTSD examination. The veteran was highly alert, compliant, and competent during the interview. The examiner noted that the veteran was intellectual to an obsessive compulsive degree in his attempts to be accurate. His affect was noted to be saddened, he was depressed, and he was hypervigilant, especially in crowded areas. The examiner diagnosed the veteran with PTSD and assigned a GAF score of 50. In an August 2004 VA outpatient mental health clinic note the veteran was reported to be groomed, neat, and cooperative but anxious. The veteran's mood was anxious and affect was appropriate. His thinking was logical and organized. The veteran showed good judgment and impulse control. The veteran was diagnosed with PTSD and no follow-up appointments were found to be necessary. Subsequently, in July 2005, VA found that no additional therapist time was needed. In September 2005, the veteran was afforded another VA C&P PTSD examination. The veteran was described to have a somber attitude, was distant, and rude to others. The veteran related that he worked alone most of the time and was only friends with other veterans. The mental status examination revealed that the veteran was oriented, well groomed, and had no hallucinations or delusions, except that he sometimes saw snakes from his peripheral vision, something he often saw while stationed in Vietnam. The veteran had a restricted affect and passive suicidal thoughts but no homicidal thoughts or plans. His short and long term memory was intact. The veteran's judgment and impulse control were noted as good. His mood was anxious but he had no obsessions, compulsions, or panic attacks. The veteran indicated that he had interrupted sleep and nightmares at least twice a week. He participated in group therapy at the Vet Center between two to four times a month. The examiner diagnosed the veteran with moderate, chronic PTSD and assigned a GAF score of 50. There is conflict in the medical evidence regarding the current severity of the veteran's service-connected PTSD symptoms. The veteran should, therefore, be scheduled for an examination to reconcile the conflicting reports of the severity of the veteran's PTSD symptoms, especially the VA examination report dated in September 2005 and the private examination report also dated in September 2005 and render an opinion on the current severity of the veteran's PTSD. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). VA is required to make reasonable efforts to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. See 38 U.S.C.A. § 5103A(b)(1) (West 2002); 38 C.F.R. § 3.159(c)(1) (2007); Bell v. Derwinski, 2 Vet. App. 611 (1992). The Board observes that no treatment records from the veteran's private psychologist, other than evaluation summary reports dated in February 2003, October 2003, August 2004, and September 2005, have been associated with the claims file. Accordingly, attempts should be made to obtain all of the veteran's psychiatric treatment reports and notes from Andrew F. Jensen, PhD, from October 2002 to the present. Accordingly, the case is REMANDED for the following action: 1. Take appropriate steps to obtain the veteran's private psychiatric treatment records from Andrew F. Jensen, Ph.D. from October 2002 to the present. Also attempt to obtain any other documents that are identified by the veteran as relevant provided that the appropriate authorization forms are completed. 2. After completion of the above development, the veteran should be afforded a VA examination to determine the current severity of his PTSD symptoms. The claims file should be provided to the examiner prior to the examination. All indicated studies and tests deemed necessary by the examiner should be accomplished and all results must be included in the examination report. A complete rationale for all opinions expressed must be provided. The examiner should address the following: Assign an Axis V diagnosis (GAF score), consistent with the American Psychiatric Association's Diagnostic and Statistical Manual for Psychiatric Disorders, and explain what the assigned score represents. List all symptoms exhibited by the veteran that are attributable to his PTSD. The examiner should note the frequency at which each symptom occurs, the severity of each symptom, and discuss the impact each symptom has on the veteran's social and occupational adaptability. The examiner should then offer an opinion summarizing the social and occupational impairment due to the veteran's PTSD symptoms Any indications that the veteran's complaints or other symptomatology are not in accord with the objective findings on examination should be directly addressed and discussed in the examination report. The examiner should reconcile the conflicts between the January 2003 VA examination, August 2004 VA outpatient mental health consultation note, and September 2005 VA examination and the February 2003, October 2003, August 2004, September 2005 evaluation summaries of Dr. Andrew F. Jensen concerning the level of severity of the veteran's PTSD symptoms. If this cannot be accomplished without resorting to speculation the examiner should so state. 3. If the veteran fails to report to the scheduled examination, the RO must obtain and associate with the claims file copy of any notice of the examination sent to the veteran by the pertinent VA medical facility. 4. To help avoid future remand, the RO must ensure that all requested action has been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 5. Thereafter, the readjudicate the veteran's claims. If the benefits sought on appeal are not granted in full, the RO should issue the veteran and his representative a supplemental statement of the case and provide an opportunity to respond. 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. 2006). _________________________________________________ K. OSBORNE 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).