Citation Nr: 1121853 Decision Date: 06/06/11 Archive Date: 06/20/11 DOCKET NO. 05-04 253 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a rating in excess of 10 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Peter J. Meadows, Esq. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from June 1967 to June 1969. This matter is before the Board of Veterans' Appeals (Board) on January 2011 remand from the United States Court of Appeals for Veterans Claims (Court). The case was originally before the Board on appeal from a July 2004 rating decision by the St. Petersburg, Florida Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for PTSD, rated 10 percent, effective January 26, 2004. In April 2007, a Travel Board hearing was held before the undersigned; a transcript of the hearing is associated with the Veteran's claims file. In August 2007, the Board remanded the matter for additional development. In a December 2008 decision, the Board denied the claim on appeal. The Veteran appealed that decision to the Court. In October 2009, the Court vacated the Board's decision and remanded the issue to the Board for further action consistent with a Joint Motion for Remand (Joint Motion) by the parties. In a June 2010 decision, the Board again denied the claim on appeal. The Veteran appealed that decision to the Court. In January 2011, the Court vacated the Board's decision and remanded the issue to the Board for further action consistent with a Joint Motion by the parties. The appeal is REMANDED to the RO. VA will notify the appellant if further action is required. REMAND In the Board's June 2010 decision, it was explained that the evidence of record did not show that the Veteran has had any cognitive impairment, panic attacks, or chronic sleep impairment for any distinct period of time during the appeal period. In May 2010, the Veteran's attorney submitted a private treatment report (with a waiver of RO initial consideration) from C.L.K., LPC, who indicated he reviewed the Veteran's claims file and interviewed him, and indicated he was suffering from chronic sleep impairment, a depressed mood, panic attacks, memory loss, anger and isolation. He further opined that based on these symptoms, the Veteran's PTSD warrants an initial rating of 70 percent. The January 2011 Joint Motion stated that the Board did not address the May 2010 private treatment report from C.L.K., LPC, and because the evidence is relevant to the Veteran's level of occupational and social impairment, it should have been expressly considered and addressed by the Board. In light of the May 2010 private treatment report from C.L.K., LPC (which reports increasing disability), the Board finds that further development of the evidentiary record is necessary to properly address the matter of entitlement to a rating in excess of 10 percent for PTSD. Inasmuch as the report of the last VA examination (June 2008) is now too old to adequately evaluate the current state of the Veteran's PTSD, and evidence suggests an increase in the severity of the disability, VA must provide a new examination. Olsen v. Principi, 3 Vet. App. 480, 482 (1992) (citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992)). The Board notes that its August 2007 remand, in part, instructed that all medical providers identified by the Veteran from whom he has received treatment for PTSD since 2006, "including the marital counseling records referenced during the April 2007 hearing," were to be secured. Notably, in an October 2008 supplemental statement of the case (SSOC) notice response, the Veteran indicated he had no other information or evidence to submit; hence, no outstanding private treatment records were secured. Inasmuch as this matter is being remanded anyway, and as there appears to be outstanding private treatment records, the Veteran should be provided another opportunity to submit VA Form 21-4142's so that any such treatment records can be associated with the claims file for a complete picture of the Veteran's PTSD. Furthermore, records of any VA treatment the Veteran may have received for his PTSD are constructively of record, are likely to contain pertinent information, and must be secured. Finally, it is noteworthy, as this appeal is from the initial rating assigned with the award of service connection, "staged" ratings are for consideration regarding the matter of the rating for PTSD. Fenderson v. West, 12 Vet. App. 119 (1999). Accordingly, the case is REMANDED for the following action: 1. The RO should ask the Veteran to identify the provider(s) of any additional treatment and/or evaluation he has received for PTSD since 2006 (records of which are not already associated with the claims file), and to provide any releases necessary for VA to secure such records, specifically including records of any marital counseling and records from C.L.K., LPC. The RO should obtain complete records of all such treatment and evaluation from all sources identified by the Veteran. Regardless, the RO should secure for association with the claims file updated (to the present) copies of the complete clinical records of all VA treatment and evaluation, if any, the Veteran has received for his PTSD since February 2004. If any identified records are not received pursuant to the RO's request, the Veteran and his attorney should be so advised, and reminded that it is his responsibility to ensure that any private records are secured. 2. Upon completion of the above, the RO should arrange for the Veteran to be examined by a psychologist or psychiatrist or other appropriate examiner to determine the current severity of his service-connected PTSD. The Veteran's claims file (including this remand and the evidence and information received pursuant to the development sought above) must be reviewed by the examiner in connection with the examination. The examiner should describe all findings in detail that pertain to the service-connected PTSD (see 38 C.F.R. § 4.14 (2010) (the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation...is to be avoided)). The examiner should also comment on the expected impact of the symptoms found on the Veteran's everyday and occupational functions, including by assigning a Global Assessment of Functioning score. The examiner must explain the rationale for all opinions offered. 3. The RO must ensure that all development requested above is completed, and then readjudicate the matter (to include consideration of "staged" ratings for PTSD, if indicated). If it remains denied, the RO should issue an appropriate SSOC and afford the Veteran and his attorney the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant 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 or by the Court 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). _________________________________________________ MARY SABULSKY 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).