Citation Nr: 1122452 Decision Date: 06/09/11 Archive Date: 06/20/11 DOCKET NO. 10-29 744 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD C. Fields, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1988 to December 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. 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 Further development is necessary for a fair adjudication of the Veteran's claim. 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 claim so that he is afforded every possible consideration. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2010). Specifically, there is an indication that there may be outstanding treatment records that are pertinent to the Veteran's claim. An August 2010 letter from a private psychologist, Dr. R.J.O., indicates that the Veteran had been receiving private out-patient therapy since June 2009. No such records have been requested or obtained. Further, it is unclear whether the Veteran currently receives VA treatment for his PTSD. In this regard, the Veteran reported taking anti-anxiety medications during the August 2009 VA examination, and there is no indication whether such medication was from a VA or private provider. The claims file contains VA mental health treatment records dated in 2003, prior to the period on appeal, and records pertaining to physical disabilities dated in 1999 and 2010, but no further mental health treatment records. As such, upon remand, the Veteran should be requested to identify any VA or private providers who have treated him for mental health symptoms during the course of the appeal, or since June 2009. He should provide an authorization or release for any private records, specifically to include from Dr. R.J.O. Thereafter, appropriate requests should be made to obtain any outstanding treatment records, to include any VA treatment records dated since June 2009. The Veteran should be allowed the opportunity to provide any records that cannot be obtained. Additionally, the Veteran was last afforded a VA examination in August 2009, and the August 2010 report from his private provider indicates a much lower Global Assessment of Function (GAF) score. The agency of original jurisdiction has not had the opportunity to consider this new evidence, and the Veteran did not waive this procedural requirement. See 38 C.F.R. §§ 20.800, 20.1304(c) (2010). Further, there is an indication that the Veteran's symptoms may have increased in severity, and the available evidence is insufficient to adequately rate his disability. See Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (VA must provide a new examination where a veteran claims the disability is worse than when originally rated and the available evidence is too old to adequately evaluate the current severity); Allday v. Brown, 7 Vet. App. 517, 526 (1995) (VA must provide a new medical examination where the record does not adequately reveal the current state of the claimant's disability, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination). Accordingly, after all identified, available treatment records have been associated with the claims file, the Veteran should be scheduled for a new VA examination to determine the current severity of his PTSD. Thereafter, the claim should be readjudicated based on all evidence of record. Accordingly, the case is REMANDED for the following action: 1. Request the Veteran to identify any providers who have treated him during the course of the appeal, or since June 2009, for his PTSD. He should identify any VA and/or private providers, to include Dr. R.J.O., and complete an Authorization and Consent to Release Information to VA form (VA Form 21-4142) for each non-VA provider. After obtaining the necessary authorizations, request copies of any outstanding treatment records, including but not limited to any records from Dr. R.J.O. and any VA mental health treatment records dated from June 2009 forward. All requests and all responses, including negative responses, should be documented, and all records received must be associated with the claims file. If any records cannot be obtained after making reasonable efforts, the Veteran must be notified of the missing records, as well as the efforts taken and any further efforts that will be made by VA to obtain such evidence. The Veteran should also be allowed an appropriate time to provide any such records. 2. After completing the above-described development, schedule the Veteran for a VA examination to determine the current severity of PTSD. The entire claims file and a copy of this remand should be made available to the examiner for review, and such review should be noted in the examination report. All necessary tests and studies should be conducted. The examiner should measure and record all current symptoms of PTSD and provide a GAF score. All lay and medical evidence of record should be considered, including but not limited to the prior VA examination and the two previous private evaluations. Any opinion offered must have a complete rationale. 3. After completing any further development as may be indicated by any response received upon remand, readjudicate the claim based on all lay and medical evidence of record. If the claim remains denied, issue a supplemental statement of the case to the Veteran and his representative, which addresses all relevant law and all evidence associated with the claims file since the last statement of the case. Allow an appropriate period of time for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The purpose of this REMAND is to ensure compliance with due process considerations. 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 and/or evidence which may be dispositive of the appeal. Therefore, the Veteran is hereby placed on notice that, pursuant to 38 C.F.R. § 3.655 (2010), failure to cooperate by attending the 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). _________________________________________________ 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).