Citation Nr: 1120904 Decision Date: 05/31/11 Archive Date: 06/06/11 DOCKET NO. 09-04 848 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs ATTORNEY FOR THE BOARD A. Spector, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1970 to March 1974. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a November 2007 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which established entitlement to service connection for PTSD, and assigned a 50 percent disability rating. The Veteran filed a notice of disagreement (NOD) with this determination in April 2008, and timely perfected his appeal in December 2008. In December 2008, the Veteran requested and was scheduled a Travel Board hearing. The Veteran later submitted a statement in January 2010, requesting to cancel his Board hearing. Accordingly, the Board deems the Veteran's hearing request to be withdrawn. See 38 C.F.R. § 20.704(e) (2010). As a final introductory matter, it does not appear that the following issue has been addressed by the agency of original jurisdiction (AOJ). On the December 2008 VA Form 9, the Veteran indicated that he disagreed with the effective date assigned for his service-connected PTSD. As the AOJ has not yet adjudicated this issue, the Board does not have jurisdiction, and it is referred back 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 Veteran if further action is required on his part. REMAND After a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of his claim of entitlement to an initial disability rating in excess of 50 percent for PTSD. Initially, the Board notes that a remand is necessary to obtain any outstanding VA treatment records. The record reflects that the Veteran was receiving periodic treatment for his PTSD through October 2008. Though the VA claims file contains VA treatment records through August 2009, it is unclear whether the Veteran continued to seek treatment for his PTSD after that date. As these VA treatment records may contain information pertinent to his claim, they are relevant and should be obtained. See 38 C.F.R. § 3.159(c)(2) (2010); Bell v. Derwinski, 2 Vet. App. 611 (1992). The Veteran should also be offered the opportunity to submit any private treatment records in support of his claim. Furthermore, the Board finds that the July 2007 VA examination is too remote in time to address the current severity of the Veteran's service-connected PTSD (i.e. the Veteran stated in his April 2008 NOD that his primary care physicians agreed that he should be receiving a 100 percent disability rating for his PTSD.) See also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that a Veteran was entitled to a new examination after a two year period between the last VA examination and the Veteran's contention that his disability had increased in severity) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). Therefore, the Board must remand this matter to afford the Veteran an opportunity to undergo a VA examination to assess the current nature, extent, and severity of his PTSD. See Snuffer, supra; see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43,186 (1995). Accordingly, the case is REMANDED for the following action: 1. The AMC should obtain any available outstanding VA treatment records dated from August 2009 to the present. Any attempts to obtain these records and responses received thereafter should be associated with the Veteran's VA claims file. The Veteran should also be offered the opportunity to submit any private treatment records in support of his claim. 2. After obtaining any available treatment records, the Veteran should be scheduled for a new VA examination to determine the current severity of his service-connected PTSD. The VA claims file and a complete copy of this Remand must be made available to and reviewed by the VA examiner in conjunction with the examination. The VA examiner should note in the examination report that this has been accomplished. All necessary testing should be provided. The VA examiner should also comment on the effect of the Veteran's current PTSD symptomatology on his employability. The VA examiner must provide a comprehensive report including a complete rationale for any opinions and/or conclusions reached, citing the objective medical findings leading to the conclusion(s). 3. Thereafter, the AMC must review the claims file to ensure that the foregoing requested development has been completed. In particular, review the requested medical opinion to ensure that it is responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. See Stegall, supra. 4. After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim for an initial disability rating in excess of 50 percent for PTSD should be readjudicated. If the claim remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, this issue should be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. See 38 C.F.R. § 3.655 (2010). 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 2002 & Supp. 2010). _________________________________________________ K. A. KENNERLY Acting 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).