Citation Nr: 1120194 Decision Date: 05/24/11 Archive Date: 06/06/11 DOCKET NO. 07-36 351 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD David Traskey, Associate Counsel INTRODUCTION The Veteran had active service from May 1966 to April 1970. This matter came before the Board of Veterans' Appeals (Board) on appeal from decisions of April 2006 and May 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran indicated in May 2008 that he lost his job due to his psychiatric symptoms. The Board construes this statement to be an informal claim for a total disability rating based on individual unemployability (TDIU). Therefore, the Board refers this issue for any appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The RO originally awarded service connection for PTSD in a rating decision dated April 2006. The Veteran's PTSD was evaluated as 50 percent disabling under 38 C.F.R. § 4.130, Diagnostic Code 9411, effective November 17, 2004, the date that the Veteran filed his original service connection claim for PTSD. The Veteran was notified of this decision and provided his appellate rights. Within one year from the date of the original rating decision, the Veteran submitted a statement (in March 2007) in which he requested that his claim for PTSD be reopened. Enclosed was a letter from his therapist. Thereafter, in May 2007, the RO issued a rating decision in which it continued the Veteran's 50 percent evaluation for PTSD under Diagnostic Code 9411, effective November 17, 2004. The Veteran was notified of this decision and provided his appellate rights. He filed a timely notice of disagreement in June 2007. The RO issued a statement of the case (SOC) in September 2007 and the Veteran timely perfected this appeal in November 2007. According to 38 C.F.R. § 3.156(b), new and material evidence received prior to the expiration of the appeal period will have been considered to have been filed in connection with the claim which was pending at the beginning of the appeal period. In this case, the Veteran was awarded service connection for PTSD in a rating decision dated April 2006. In March 2007, (and prior to the date on which the April 2006 rating decision became final), the Veteran requested that his PTSD claim be reopened and provided a statement from his therapist. The RO treated the Veteran's statement as an increased rating claim for his service-connected PTSD. That same month, the RO advised the Veteran to submit evidence showing that his service-connected disability increased in severity. The RO also obtained outstanding VA treatment records and afforded the Veteran a new VA examination to assess the nature and severity of his service-connected PTSD. But, a review of the May 2007 rating decision and subsequent SOC revealed that the RO considered only that evidence of record which was received on or after March 2007, the purported date of the Veteran's increased rating claim. In light of the foregoing, the Board finds that the April 2006 rating decision is not final and the issue currently on appeal before the Board is more appropriately styled as an initial increased rating claim for PTSD. See 38 C.F.R. § 3.156(b). VA has a duty to assist veterans to obtain evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 § C.F.R. § 3.159 (2010). This duty to assist includes providing a thorough and contemporaneous medical examination. Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The United States Court of Appeals for Veterans Claims (Court) has held that when a veteran claims that a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition, VA must provide a new examination. Olson v. Principi, 3 Vet. App. 480, 482 (1992) (citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992)). Here, the Board finds that a new VA examination is warranted as the Veteran has not been afforded a VA examination since April 2007 and pertinent medical evidence bearing on his disability has been received since that time. Specifically, the Veteran submitted a statement dated May 2008 in which he indicated that his psychiatric disability got worse. Namely, the Veteran stated that he was drinking more, sleeping less, having more nightmares, and trouble sleeping. The Veteran described his life as useless and hopeless since he was no longer able to "do my former employment due to the severity of my depression and the symptoms." Outpatient VA psychiatric treatment records also reflect lower Global Assessment of Functioning (GAF) scores and regular participation in group therapy sessions. In light of the evidence described above, the Veteran should be provided a new VA examination to ascertain the nature and severity of his service-connected PTSD. The Veteran also receives medical care through VA. VA is required to make reasonable efforts to help a veteran obtain records relevant to his claim, whether or not the records are in Federal custody. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2010); Bell v. Derwinski, 2 Vet. App. 611 (1992). The RO/AMC should attempt to obtain all VA medical records pertaining to the Veteran that are dated from September 15, 2007. The Veteran should be contacted and asked to identify any and all VA and non-VA sources of treatment for his psychiatric disabilities that are not already of record. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he identify any and all VA and non-VA sources of treatment for his psychiatric disability that are not already of record. In particular, the Veteran should provide, or authorize VA to obtain, any such pertinent private records, which are not already of record, to include all records from the Vet Center. All efforts to obtain these records should be fully documented. If these records do not exist or cannot be obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e) (2010). 2. Associate with the claims file relevant VA medical treatment records pertaining to the Veteran that are dated from September 15, 2007. If there are no such records, the claims folder should be documented accordingly. An attempt should also be made to obtain any other VA medical records identified by the Veteran in response to Step One which are not already of record. If identified records do not exist or cannot be obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e) (2010). 3. After all of the above development is completed, make arrangements with the appropriate VA medical facility for the Veteran to have a VA psychiatric examination to ascertain the nature and severity of his service-connected PTSD. The examiner should note in the examination report that the claims file has been reviewed. Any appropriate evaluations, studies, and testing deemed necessary by the examiner should be conducted at this time, and included in the examination report. In particular, the examiner is asked to assess the severity of the Veteran's service-connected PTSD. The examiner should attempt to disassociate such symptomatology from non-service-connected psychiatric disorders, if any are present. If the symptomatology cannot be disassociated, the examiner should so state and explain why. The examiner is also asked to include a Global Assessment of Functioning (GAF) score and an explanation of what the score represents. The examiner must provide a complete rationale for any stated opinion. 4. After the requested examination has been completed, the examination report should be reviewed to ensure that it is in complete compliance with the directives of this remand. The examination report should be returned to the examiner if it is deficient in any manner. 5. Thereafter, ensure that the development above has been completed in accordance with the remand instructions, undertake any other development action that is deemed warranted, and readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable laws and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response before the case is returned to the Board. The Veteran 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. 2010). _________________________________________________ S.S. TOTH 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) (2010).