Citation Nr: 1124872 Decision Date: 06/30/11 Archive Date: 07/06/11 DOCKET NO. 10-00 744 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for posttraumatic stress disorder (PTSD) prior to March 25, 2009. 2. Entitlement to an initial evaluation in excess of 30 percent for PTSD on or after March 25, 2009. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from March 1968 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office in Wichita, Kansas (RO). In that rating decision, the RO granted service connection for PTSD and assigned a 10 percent evaluation effective from July 31, 2008. During the pendency of the appeal, the RO issued another rating decision in November 2009 in which the evaluation for PTSD was increased to 30 percent effective from March 25, 2009. However, the Veteran has not been granted the maximum evaluation for his disability. Applicable law mandates that when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). Thus, the issue remains on appeal. A hearing was held on January 12, 2011, in Wichita, Kansas, before the undersigned Acting Veterans Law Judge, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) and who is rendering the determination in this case. A transcript of the hearing testimony is in the claims file. 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 law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010). In this case, it appears that there may be additional treatment records that are not associated with the claims file. In this regard, the Veteran testified at his January 2011 hearing that he had been participating in group counseling sessions through VA. He also submitted a January 2011 letter from a VA psychologist indicating that he was involved in group therapy. However, the claims file does not contain any treatment records dated after August 2009. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered 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 (1998); Bell v. Derwinski, 2 Vet. App. 611 (1992). VA has a duty to seek such records. 38 C.F.R. § 3.159(c). Therefore, the RO should attempt to obtain any and all treatment records pertaining to the Veteran's service-connected PTSD. In addition, the Board notes that the Veteran was last afforded a VA psychiatric examination in January 2009 to evaluate the severity of his PTSD. Although that examination is only about two and a half years old, there is evidence suggesting that the disability may have worsened. In this regard, the Veteran testified at his January 2011 hearing that he has increasing panic attacks. The January 2011 letter from the VA psychologist also appears to indicate that the Veteran's PTSD is more severe than that reflected by the symptomatology documented in the January 2009 VA examination report. 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 Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Therefore, as this case is already being remanded for further development, the Board finds that the Veteran should be afforded a more recent VA examination for the purpose of ascertaining the current severity and manifestations of his service- connected PTSD. Accordingly, the case is REMANDED for the following action: 1. The RO should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his service-connected PTSD. After acquiring this information and obtaining any necessary authorization, the RO should obtain and associate these records with the claims file. The RO should obtain VA medical records dated from August 2009 to the present. 2. After all available records have been associated with the claims file, the Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his PTSD. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's statements and testimony, treatment records, and the January 2011 letter from a VA psychologist. The examiner should then comment on the severity of the Veteran's PTSD and address all signs and symptoms necessary for rating the disability under the General Rating Formula for Mental Disorders. The findings of the examiner should also address the level of social and occupational impairment attributable to the Veteran's PTSD. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2010), copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the case should be reviewed by the RO on the basis of the additional evidence. 3. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The appellant has the right to submit additional evidence and/or argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the appellant until he is notified. 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. 2008). _________________________________________________ JESSICA J. WILLS 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).