Citation Nr: 1018395 Decision Date: 05/18/10 Archive Date: 06/04/10 DOCKET NO. 09-14 191 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to an initial rating in excess of 50 percent for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD D.S. Lee, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1964 to November 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania, which assigned an initial disability rating of 50 percent for the Veteran's service-connected PTSD. The issue of entitlement to a total disability rating based on individual unemployability (TDIU) for service-connected disabilities has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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 In October 2006, the Veteran provided a signed VA 21-4142 release for medical records from Dr. A.G. This release was mailed to Dr. A.G. in December 2006 with a written request for the Veteran's treatment records. In a January 2007 response letter, Dr. A.G. states that he has known the Veteran for many years and saw him on a number of occasions, from 2001 to 2006, in regard to counseling for anxiety disorder and posttraumatic stress. Nonetheless, no treatment records were provided by Dr. A.G. with his written response. No documented efforts have been made to follow-up with Dr. A.G. to obtain such records. A September 2008 decision letter from the Australian Government reflects that the Veteran was determined to be eligible for continued disability support pension payments. A Job Capacity Assessment Report which was prepared in conjunction with the Australian Government's determination reflects a determination that the Veteran was unable to manage social situations and manifested difficulties with anger which interfered with his work relationships. The assessment also determined that the demonstrated no residual work capacity. The Job Capacity Assessment Report states that its findings are based upon a June 2008 psychiatric examination report prepared by the Veteran's private psychiatrist, Dr. O.K. A review of the claims file reveals that, with the exception of a March 2009 letter from Dr. O.K., only treatment records through October 2007 have been obtained. Moreover, no documented effort has been made to obtain any psychiatric treatment records which may be in the possession of the Australian Government. In his March 2009 letter, Dr. O.K. opined that the Veteran demonstrated deficiencies in most areas which rendered him unable to work, with stilted and impaired family relations, difficulties with logical thinking, impairment to mood, passive suicidal ideation, obsessionally ritualistic behavior, obscure and irrelevant speech, compromised daily routine, anxiety, depression, and no capacity for adapting to stressful situations. Nonetheless, the treatment records obtained to date do not document all of the symptoms recited by Dr. O.K. Moreover, the Veteran has not been afforded a VA psychiatric examination to assess the current severity of his psychiatric disability and its impact upon his occupational and social functioning. 38 C.F.R. § 3.159(c)(1) requires VA to make reasonable efforts to obtain relevant records which are not in the custody of a Federal department or agency. Such efforts generally consist of an initial request to obtain the records, and if such records are not received, at least one follow-up request. A follow-up request is not necessary where VA receives a response to its initial request indicating that the records sought do not exist or that a follow-up attempt would be futile. If VA receives a response showing that subsequent requests to this or another custodian could result in obtaining the records sought, then reasonable efforts will include an initial request, and if the records are not received, at least one follow-up request to the new source or an additional request to the original source. In this case, the Veteran's private treatment records from Dr. A.G. and Dr. O.K. and the pension records from the Australian Government are likely to contain additional evidence which is relevant to the progression of the current's psychiatric symptoms, the current severity of such symptoms, and their impact upon his occupational and social functioning. Accordingly, the RO must attempt to obtain these records in accordance with 38 C.F.R. § 3.159(c)(1). Accordingly, the case is REMANDED for the following action: 1. A letter should be sent to the Veteran explaining, in terms of 38 U.S.C.A. §§ 5103 and 5103A, the need for additional evidence regarding the claim on appeal. This letter must inform the Veteran about the information and evidence that is necessary to substantiate the claim and provide notification of both the type of evidence that VA will seek to obtain and the type of evidence that is expected to be furnished by the Veteran. The Veteran should also be provided a VA 21-4142 release form, and be requested to provide on the release complete name and address information for Dr. A.G., Dr. O.K., and the department or agency within the Australian Government which has administered his claim of disability support pension payment. To the extent that the Veteran has sought any other treatment for PTSD since September 2007, he should also be requested to identify the name(s) and address(es) of those providers. The Veteran should be requested to sign the release and to return it to the RO. 2. After securing any necessary release forms, with full address information, all records of medical treatment which are not currently associated with the Veteran's claims file should be requested. All records obtained pursuant to this request must be included in the Veteran's claims file. If the search for such records yields negative results, documentation to that effect should be included in the claims file. 3. Then, the Veteran should be afforded a VA examination, with an appropriate examiner, to determine the symptoms and severity of the service-connected PTSD. The Veteran's claims file should be made available to the examiner prior to the examination, and the examiner is requested to review the entire claims file in conjunction with the examination. All tests and studies deemed necessary by the examiner should be performed. In discussing the relevant clinical findings, the examiner should specifically note the Veteran's present symptoms, complaints, level of disability, and impairment of occupational and social functioning. A multi-axis diagnosis, with a GAF score, should be rendered. A complete rationale should be given for all opinions and conclusions expressed in a typewritten report, and must consider and address the opinions expressed in the treatment records of Dr. A.G. and Dr. O.K., the Job Capacity Assessment Report prepared by the Australian Government, and the lay statements submitted by the Veteran, his spouse, and sister-in-law. 4. After completion of the above development, the Veteran's claim of entitlement to an initial rating in excess of 50 percent for an acquired psychiatric disorder, to include PTSD, should be readjudicated. If the determination remains adverse to the Veteran, he and his representative should be furnished with a Supplemental Statement of the Case and given 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. 2009). _________________________________________________ MARY GALLAGHER 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) (2009).