Citation Nr: 1124880 Decision Date: 06/30/11 Archive Date: 07/06/11 DOCKET NO. 05-34 665 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Anchorage, Alaska THE ISSUES 1. Entitlement to an evaluation greater than 10 percent for herpes simplex II from December 17, 2007. 2. Entitlement to an evaluation greater than 70 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L.J. Bakke, Counsel INTRODUCTION The veteran served on active duty from October 1993 to February 1996. This appeal arises before the Board of Veterans' Appeals (Board) from rating decisions rendered by the Department of Veterans Affairs (VA) Regional Office (RO) in August 2001 in Seattle, Washington and in October 2003 in Salt Lake City, Utah. The Anchorage, Alaska RO has now has jurisdiction. The veteran testified before the undersigned in July 2006. A transcript of the hearing is associated with the claims file. The issue of service connection for a headache disorder, either as directly related to active service or as secondary to a service connected condition has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action. In July 2007, the Board granted a 70 percent evaluation for the Veteran's PTSD and remanded the issues of entitlement to an evaluation greater than 70 percent for PTSD and an evaluation greater than 10 percent for herpes simplex II. Development was completed in compliance with the remand instructions. In an August 2009 rating decision, a 30 percent evaluation was granted for herpes simplex II from May 12, 1998, the date service connection was granted, to December 16, 2007 and a 10 percent evaluation from December 17, 2007. As this constitutes a partial grant of benefits, the issue of entitlement to an evaluation greater than 10 percent for herpes simplex II from December 17, 2007 remains pending. The issue has been recharacterized as indicated on the front page of this decision. 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 Following the Supplemental Statement of the Case (SSOC) issued in August 2009, the Veteran responded, indicating that she had more information or evidence to submit in support of her appeal. She provided a statement and signed release of private medical records for a private treating facility that she indicated had treated her for her claimed conditions. These documents were received in August 2009, within 30 days after issuance of the SSOC. In December 2009, she submitted additional private medical evidence with waiver of AOJ consideration. These documents are pertinent to her claims. Specifically, the Veteran detailed symptoms of her herpes in an August 2009 statement, including that she had outbreaks in May and June 2009. She stated that she receives private treatment for her herpes, including prescribed Valtrex, and provided release for private medical treatment records. Private treatment records submitted in December 2010 show that the Veteran presented in December 2008 for renewal of Valtrex. Private medical records submitted in December 2010 include an August 2009 statement from a private physician, showing that the Veteran continues to receive treatment for PTSD issues and anxiety, among other conditions. In addition, VA treatment records dated from December 2007 to May 2009 document symptoms of panic; tearfulness; agitation; disorganized, obsessive, and tangential thought processes and associations; impulsive behaviors; and decrease in Global Assessment of Functioning (GAF). These records also document changes in prescribed medication. Of significance are entries dated in April 2009, which reflect that the Veteran was seen following a suicidal gesture. While the entry shows that the Veteran protested she did not really want to hurt herself, the health care provider observed that the Veteran expressed that she did want to hurt herself. The apparent conflict would appear to indicate that the Veteran's psychiatric condition is not stable. It is noted that the most recent VA examination for PTSD is dated in July 2005. The Board regrets the delay another remand will cause, but finds it is necessary to obtain the identified private treatment records in order to properly adjudicate the Veteran's claims. Furthermore, in light of the above documented treatment and symptoms shown in the private and VA treatment records, a current VA examination for PTSD is also necessary. Finally, the evidence of record continues to raise the issue of entitlement to a total disability rating for compensation purposes based on individual unemployability due to a service-connected disability (TDIU). In a June 2009 VA examination, the Veteran stated she was unemployable due to her service-connected disabilities. It is noted that various treatment entries indicate the Veteran is performing some level of work, but it cannot be determined whether such work is partially or entirely unpaid internship or, if paid, if the employment is gainful (not marginal) employment. See 38 C.F.R. § 4.16 (2010). See also Rice v. Shinseki, 22 Vet. App. 447 (2009), citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). The Veteran must be advised of the importance of reporting to any scheduled VA examination and of the possible adverse consequences, to include the denial of her claims, of failing to so report. See 38 C.F.R. § 3.655 (2010). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify any other health care providers who have treated her for her herpes and PTSD, and request that she provide release of private treatment records-including Medical Park Family Care, Inc. and/or Dr. Wiggins. Obtain copies of all records of treatment for herpes and PTSD from all identified health care providers, including the Alaska Regional Hospital, Medical Park Family Care, Inc., and Dr. Wiggins. Also request that the Veteran provide any such records she may have in her possession. A failure to respond or a negative reply to any request must be noted in writing and associated with the claims folder. If the requested records are unavailable, notify the Veteran and her representative in accordance with the provisions of 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(e) (2010). 2. Contact the Veteran and offer her another examination for gynecological conditions with a female provider other than the examiner who conducted the June 2009 examination, to include by fee-basis if necessary. To the extent possible, schedule such examination during an active outbreak of herpes. In the alternative, ask the Veteran to provide a statement from her private treating physician detailing her symptoms. The Veteran should be told that the physician should describe her symptoms fully, including the frequency and severity of outbreaks, and the treatment prescribed for the condition. 3. Schedule the Veteran for a psychiatric examination with a female provider, to include by fee-basis if necessary, to determine the extent of impairment due to her service-connected PTSD. All indicated tests and studies must be performed and any necessary consultations must be scheduled. The claims file must be made available to the examiner for review, and the examiner must verify that the claims file has, in fact, been reviewed. The examiner must also render an opinion as to the effect of the PTSD symptoms, by themselves, on the Veteran's ability to work and to perform the activities of daily living. In so doing the examiner must also provide a GAF and explain the significance of the GAF assigned. The rationale for all opinions expressed must be provided. 4. When the actions requested have been completed, undertake any other indicated development. Then readjudicate the issues of entitlement to an evaluation for herpes simplex II greater than 10 percent from December 17, 2007 and for an evaluation for PTSD greater than 70 percent with consideration of all evidence, to include lay statements. Also adjudicate the issue of entitlement to TDIU. If the benefits sought on appeal are not granted to the Veteran's satisfaction, she and her representative must be furnished an SSOC on the entitlement to an evaluation for herpes simplex II greater than 10 percent from December 17, 2007 and for an evaluation for PTSD greater than 70 percent. If entitlement to TDIU is denied, the RO must inform the Veteran of her appellate rights and the procedure to perfect an appeal. Should the Veteran disagree with that decision and perfect an appeal, the issue of entitlement to TDIU must be associated with the other issues on appeal. When the foregoing actions have been completed, and, if otherwise in order, the case should be returned to the Board for further appellate action. The Board intimates no opinion as to the final disposition of any unresolved issue. The Veteran need take no action unless she is notified to do so. However, she is advised that she has the right to submit any additional evidence and/or argument on the matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369, 372-73 (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). _________________________________________________ L. M. BARNARD 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).