Citation Nr: 1126263 Decision Date: 07/13/11 Archive Date: 07/19/11 DOCKET NO. 08-00 355 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a rating higher than 70 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. P. Swick, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from April 1965 to April 1968. This appeal to the Board of Veterans' Appeals (Board) is from a March 2007 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which confirmed and continued a 50 percent rating then in effect for the Veteran's PTSD. A decision since issued in December 2008, during the pendency of this appeal, increased the rating for his PTSD to 70 percent retroactively effective from November 17, 2006, the date of receipt of his claim. He has continued to appeal, requesting an even higher rating. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (it is presumed a claimant is seeking the highest possible rating for a disability, unless he expressly indicates otherwise). The RO even more recently issued another decision in April 2009 granting a total disability rating based on individual unemployability (TDIU) and Dependents' Educational Assistance (DEA), both also retroactively effective from November 17, 2006. Because, however, the claim for a rating higher than 70 percent for the PTSD requires further development before being decided on appeal, the Board is remanding this claim to the RO via the Appeals Management Center (AMC). REMAND VA is generally required to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A(a) (West 2002). This duty to assist includes conducting a thorough and comprehensive medical examination, especially where the available evidence is too old for an adequate assessment of the Veteran's current condition. Robinette v. Brown, 8 Vet. App. 69, 76 (1995); Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993). The Veteran's most recent VA examination for his PTSD was in November 2008, nearly three years ago. A December 2007 letter from his readjustment counselor at the local Vet Center indicated the Veteran's neighborhood was becoming less safe and that this, in turn, was triggering his PTSD symptoms. He was becoming more anxious and distrustful of his neighbors. As he has been unemployed since the late 1990s and has been granted a TDIU as a consequence, solely based on his PTSD which is his only service-connected disability, it already has been conceded this disability precludes him from obtaining and maintaining employment that is substantially gainful. Therefore, his ability or inability to function socially is especially important in assessing the overall severity of his PTSD. And as his readjustment counselor has indicated a progression of symptoms based on worsening conditions in the Veteran's neighborhood, another examination is needed to ascertain the present severity of the symptoms associated with his PTSD. See Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). See also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (where the Court determined the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating); see, too, Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where the record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination). See, as well, VAOPGCPREC 11-95 (April 7, 1995) and Green v. Derwinski, 1 Vet. App. 121 (1991). Accordingly, this claim is REMANDED for the following additional development and consideration: 1. Obtain any outstanding evaluation or treatment records concerning the Veteran's PTSD since 2008, whether from the local VA Medical Center (VAMC), Vet Center, or elsewhere (private clinic/facility, etc.). All records obtained should be associated with the other evidence in the claims file for consideration. If attempts to obtain any identified records are unsuccessful, and it is determined that further attempts would be futile, this must be documented in the claims file and the Veteran notified in accordance with 38 C.F.R. § 3.159(c) and (e). 2. Then schedule a VA compensation examination to reassess the severity of the Veteran's PTSD. [Note: he already has been granted a TDIU on account of this condition, his only service-connected disability, so it already has been determined his PTSD is totally disabling from an occupational standpoint. Comment, therefore, is mostly needed concerning the extent his PTSD causes social impairment.] To this end, the claims file, including a complete copy of this remand, must be made available to the examiner for review of the pertinent medical and other history. The Veteran is hereby advised that failure to report for this examination, without good cause, will have adverse consequences on this pending claim for a higher rating for this disability. 38 C.F.R. § 3.655 3. Upon completion of the above development, readjudicate the claim for a higher rating for the PTSD in light of any additional evidence obtained. If this claim is not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case (SSOC) and give them an opportunity to submit written or other argument in response before returning the file to the Board for further appellate consideration of this claim. The Veteran has the right to submit additional evidence and argument concerning the claim 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 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). _________________________________________________ KEITH W. ALLEN 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).