Citation Nr: 1122173 Decision Date: 06/08/11 Archive Date: 06/20/11 DOCKET NO. 09-27 608 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to an initial disability rating in excess of 30 percent for service-connected post-traumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran served on active duty from December 1957 to December 1977. The Veteran's decorations include the Purple Heart Medal and the Combat Action Ribbon. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado that granted entitlement to service connection for PTSD with alcohol dependence and assigned a 30 percent disability rating. The Veteran and his spouse testified before the undersigned Acting Veterans Law Judge at a Board hearing in April 2011. The transcript of this hearing has been associated with the claims file. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's initial rating claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, the Board notes that the Veteran was hospitalized for over 21 days for his service-connected PTSD since his most recent VA examination dated in December 2008. The Veteran also testified regarding his PTSD symptoms and indicated that his GAF scores have been worsening. The Veteran also indicated that he has panic attacks up to 2-3 times per week and keeps himself isolated from family and friends. This evidence suggests that the Veteran's disability has increased in severity since his December 2008 examination. Therefore, the Board finds that a new examination is warranted to assess the current severity of the Veteran's service-connected PTSD. See VAOPGCPREC 11-95 (Although the Board is not required to direct a new examination simply because of the passage of time, a new examination is appropriate when the record reflects that the disability in question has undergone an increase in severity since the time of the last examination); see also Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a). In addition, the Board notes that the Veteran is unemployed and the December 2008 VA examiner stated that the Veteran's PTSD symptoms affect his employment and social functioning. The Board views this evidence in terms of unemployability as a potential claim of entitlement to a TDIU. In this regard, the Board notes that in Rice v. Shinseki, supra, the United States Court of Appeals for Veteran's Claims (the "Court") held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. The Court essentially stated that a request for total disability rating, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability as part of a claim for increased compensation. Id. at 453-54. However, as the Veteran is currently evaluated at 100 percent for service-connected disabilities, no remand for further evaluation regarding individual unemployability is warranted at this time. Prior to affording the Veteran a VA examination, the RO should associate with the Veteran's claims file records of the Veteran's treatment for his PTSD. Here, the Board notes that the Veteran testified that he receives treatment at the Greeley VA Clinic and the Cheyenne VA Medical Center. The claims file also indicates that the Veteran has received treatment at the Black Hill VA Health Care System. Records from the Black Hills VA dated since April 2009, from the Cheyenne VA Medical Center dated since November 2008, and from the Greeley VA Clinic dated since service should be associated with the Veteran's claims file. The Veteran should also be afforded an opportunity to submit additional medical evidence relevant to his claim that may not be associated with the claims file. In this regard, the Board notes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered to be constructively in the 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). Pursuant to the VCAA, VA must obtain outstanding VA and private records. See 38 U.S.C.A. § 5103A(b-c); 38 C.F.R. § 3.159(c). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited handling is requested.) 1. The RO should take appropriate steps to contact the Veteran and request that he identify all VA and non-VA health care providers, other than those already associated with the Veteran's claims file, that have treated him since service for his service-connected PTSD. This should specifically include treatment records from the Black Hills VA Health System dated since April 2009, from the Cheyenne VA Medical Center dated since November 2008, and from the Greeley VA Clinic dated since service. 2. After the requested development is completed, schedule the Veteran for a VA examination to determine the current nature and severity of his PTSD. The examiner should review the claims file, examine the Veteran, and fully describe all psychiatric symptoms and manifestations exhibited by the Veteran; then discuss their impact on the Veteran's social and occupational functioning. The examiner should also provide a Global Assessment of Functioning score. A complete rationale should be provided for any opinion expressed. 3. Following the completion of the above, and any other development the AOJ deems necessary, the matter on appeal should be readjudicated. If the benefits sought are not fully granted, the Veteran and his representative should be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond before the case is returned to the Board for further review. 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). The purpose of the examination requested in this remand is to obtain information or evidence (or both) which may be dispositive of the appeal. Therefore, the Veteran is hereby placed on notice that, pursuant to 38 C.F.R. § 3.655, failure to cooperate by attending a requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). 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). _________________________________________________ MATTHEW W. BLACKWELDER 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).