Citation Nr: 1032142 Decision Date: 08/26/10 Archive Date: 09/01/10 DOCKET NO. 05-23 724 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an evaluation in excess of 70 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher Murray, Associate Counsel INTRODUCTION The Veteran had active military service from December 1967 to December 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal of a July 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Veteran testified before a VA Decision Review Officer at a November 2005 hearing conducted at the RO. A transcript of the hearing is of record. In December 2007, the Board issued a decision which denied the Veteran's claim for an increased evaluation for PTSD. Thereafter, the Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In February 2009, the Court granted a Joint Motion for Remand, and remanded the claim for additional review and consideration by the Board. 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 As noted above, the Veteran's claim was remanded by the Court for further evidentiary development. After reviewing the Joint Motion filed in this case, as well as reviewing the Veteran's claims folder, the Board finds there is a further duty to assist the Veteran with his claim herein. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2009). Specifically, the record indicates the Veteran has continued receiving treatment through VA for his service-connected PTSD. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Thus, because the Board has identified possible outstanding VA records pertinent to the Veteran's current claim on appeal, VA must undertake efforts to acquire such documents as these records may be material to his claims; a reasonable effort should be made to obtain such records. See 38 U.S.C.A. § 5103A(b). Furthermore, a July 2010 Informal Hearing Presentation submitted by the Veteran's indicates there may have been an increase in the severity of the Veteran's service-connected PTSD since his last VA examination. Therefore, a new VA examination is warranted. See VAOPGCPREC 11-95 (1995) (a new examination is appropriate when there is an assertion of an increase in severity since the last examination). Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA records for treatment for the Veteran's service- connected PTSD. Specifically, records related to the Veteran's treatment as of July 17, 2006, to the present must be associated with the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c)(2) (2009). 2. Schedule the Veteran for a VA psychiatric examination to determine the severity of his PTSD. The claims file, including a copy of this REMAND, must be made available to the examiner for review, and the examination report should reflect that such review was completed. The examiner should identify the nature, frequency, and severity of all current manifestations of PTSD. The examination report should include a full psychiatric diagnostic assessment including a Global Assessment of Functioning (GAF) score on Axis V and an explanation of the significance of the current levels of psychological, social, and occupational functioning which support the score. The examiner should specifically comment on the impact of the Veteran's PTSD upon his social and industrial activities, including whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that the veteran's PTSD causes him to be unable to obtain and retain substantially gainful employment. The rationale for all opinions expressed must be provided. 3. After completing the above, and any other development deemed necessary, readjudicate the Veteran's claim based on the entirety of the evidence. If the benefits sought on appeal are not granted to the appellant's satisfaction, he and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). _________________________________________________ MILO H. HAWLEY 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).