Citation Nr: 1120916 Decision Date: 05/31/11 Archive Date: 06/06/11 DOCKET NO. 09-04 740 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from April 1968 to May 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, which established service connection for PTSD, evaluated as 30 percent disabling, effective from March 9, 2005. The Veteran appealed, contending that a higher rating was warranted. He did not disagree with the effective date for the establishment of service connection. The Veteran provided testimony at a hearing before the undersigned Veterans Law Judge in November 2010. A transcript of this hearing has been associated with the Veteran's VA claims folder. For the reasons detailed below, the Board finds that further development is required in this case. Accordingly, 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 The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In this case, the Board finds that further development is required in order to comply with the duty to assist. The Board acknowledges that the Veteran was accorded a VA medical examination of his PTSD in August 2005. However, it has been more than 5 years since this examination, and the Board is concerned that the evidence of record may not accurately reflect the current nature and severity of this service-connected disability. In fact, it was indicated at his November 2010 hearing that his condition had gotten worse since 2005. See Transcript p. 9. This is supported by the anecdotal testimony at the hearing indicating more significant memory problems than what was demonstrated on the August 2005 VA examination. Id., pp. 3-7, 10. VA's General Counsel has indicated that when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1995); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Consequently, the Board concludes that a contemporaneous VA examination is needed in order to make an informed decision regarding the Veteran's current level of functional impairment and adequately evaluate his current level of disability. See Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where the record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination - particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination); Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (When the medical evidence of record is insufficient, in the opinion of the Board, or of doubtful weight or credibility, the Board must supplement the record by seeking an advisory opinion, ordering a medical examination, or citing recognized medical treatises that clearly support its ultimate conclusions.). Since the Board has determined that a new examination is necessary in the instant case, the Veteran is hereby informed that 38 C.F.R. § 3.326(a) provides that individuals for whom examinations have been authorized and scheduled are required to report for such examinations. The provisions of 38 C.F.R. § 3.655 addresses the consequences of a veteran's failure to attend scheduled medical examinations. That regulation at (a) provides that, when entitlement to a benefit cannot be established or confirmed without a current VA examination and a claimant, without "good cause," fails to report for such examination, action shall be taken. At (b) it is provided that when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. However, when the examination is scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. The Board further finds that all outstanding treatment records regarding the Veteran's PTSD should be obtained while this case is on remand. This is of particular importance in the instant case as the Veteran indicated that all of his treatment was through VA facilities. Specifically, facilities located in Lowell and Jamaica Plain. See Transcript p. 9. The United States Court of Appeals for Veterans Claims (Court) has held that VA records which are in existence are constructively of record and the failure of the RO or the Board to consider any such pertinent records might constitute clear and unmistakable error, even though such evidence was not actually in the record assembled for appellate review. Bell v. Derwinski, 2 Vet. App. 611 (1992). Relevant statutory and regulatory provisions also emphasize the importance of obtaining pertinent VA records as part of the duty to assist. See 38 U.S.C.A. § 5103A(c)(2); 38 C.F.R. § 3.159(c)(2). Consequently, the Board concludes that it must remand this case in order to obtain any such records. Finally, the Board notes that the Veteran testified at his November 2010 hearing that he was currently in receipt of disability benefits from the Social Security Administration (SSA). See Transcript p. 8. However, it does not appear that any such records are on file. The Court has long held that the duty to assist includes requesting information and records from the SSA which were relied upon in any disability determination. See Hayes v. Brown, 9 Vet. App. 67, 74 (1996) (VA is required to obtain evidence from the Social Security Administration, including decisions by the administrative law judge, and give the evidence appropriate consideration and weight); Murincsak v. Derwinski, 2 Vet. App. 363, 373 (1992); Masors v. Derwinski, 2 Vet. App. 181, 187-88 (1992); Collier v. Derwinski, 1 Vet. App. 413, 417 (1991); see also 38 U.S.C.A. § 5103A(c)(3); 38 C.F.R. § 3.159(c)(2). Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should obtain the names and addresses of all medical care providers who have treated the Veteran for his service-connected PTSD since March 2008, particularly any treatment he received from the Lowell and Jamaica Plain VA facilities. After securing any necessary release, the AMC/RO should obtain those records not on file. 2. The AMC/RO should obtain from the Social Security Administration the records pertinent to the Veteran's claim for Social Security disability benefits as well as the medical records relied upon concerning that claim. 3. After obtaining any additional records to the extent possible, the Veteran should be afforded an examination to evaluate the current nature and severity of his service-connected PTSD. The claims folder should be made available to the examiner for review before the examination. 4. Thereafter, the AMC/RO should review the claims folder to ensure that the foregoing requested development has been completed. In particular, the AMC/RO should review the examination report to ensure that it is responsive to and in compliance with the directives of this remand and if not, the AMC/RO should implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 5. After completing any additional development deemed necessary, the AMC/RO should readjudicate the issue on appeal in light of any additional evidence added to the records assembled for appellate review. If the benefits requested on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC), which addresses all of the evidence obtained after the issuance of the December 2008 SOC, and provides an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. 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. 2010). _________________________________________________ C. TRUEBA 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).