Citation Nr: 1127583 Decision Date: 07/25/11 Archive Date: 08/02/11 DOCKET NO. 07-36 222 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to an increased rating for post traumatic stress disorder (PTSD) in excess of 30 percent for the period from September 19, 2005 to July 10, 2006, and 50 percent thereafter. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran had active military service from June 1964 to June 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. By that rating action, the RO, in part, increased the disability rating assigned to the service-connected PTSD from 30 to 50 percent, effective July 11, 2006--the date of a VA treatment report, reflecting an increase in severity of the this disability. The Veteran appealed the RO's May 2007 rating action to the Board. Theoretically, the Board notes that because an increase can be awarded one year prior to VA having received the Veteran's claim for increased compensation for his PTSD on September 19, 2006, and the increase to 50 percent was limited to July 11, 2006, the Board has characterized the issue as that listed on the title page. See 38 U.S.C.A. § 5110(a), (b)(2) (West 2002); 38 C.F.R. § 3.400(o)(2) (2010); see Harper v. Brown, 10 Vet. App. 125, 126-27 (1997); (explaining that § 3.400(o)(2) applies to claim where increase in disability precedes the claim so long as that claim is received within one year after the increase, otherwise the general rule in § 3.400(o)(1) applies); Hart v. Mansfield, 21 Vet. App. 505, 508 (2007); Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). Because the increase to 50 percent in the evaluation of the Veteran's PTSD does not represent the maximum rating available for the condition, the Veteran's increased evaluation claim remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). The appeal is REMANDED to the RO/Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran seeks increased ratings in excess of 30 and 50 percent for his service-connected PTSD for the prescribed periods on appeal. The Board finds that a remand for another VA psychiatric examination is necessary, in part, to determine the current severity of the service-connected PTSD, to acquire outstanding VA treatment records and to secure the Veteran's vocational rehabilitation folder. The Veteran contends that his service-connected PTSD is more severely disabling than that reflected by the currently assigned 30 and 50 percent disability ratings for the prescribed periods on appeal. VA last examined the Veteran to determine the current severity of his PTSD in December 2006. Since the above-cited VA examination, the Veteran maintains that he has experienced an increase in memory loss and difficulty in concentration. (See VA Form 9, received by VA in October 2007). In light of the Veteran's allegation that his service-connected PTSD has worsened since the December 2006 VA examination, the Board finds that an additional VA examination is warranted to assess the current severity of this disability. 38 U.S.C.A. § 5103A (d) (West 2002); 38 C.F.R. § 3.159(c) (4) (2010). The Veteran is entitled to a new VA examination where there is evidence (including his statements) that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). VA's duty to assist a Veteran includes providing a thorough and contemporaneous examination when the record does not adequately reveal the current state of the Veteran's disability. Hart v. Mansfield, 21 Vet. App. 505, 508 (2007). Accordingly, in order to accurately assess the severity of the Veteran's PTSD, he should be afforded a new and contemporaneous VA psychiatric examination. See 38 U.S.C.A. § 510 In addition, a June 2008 VA treatment report reflects that the Veteran has received treatment for his PTSD at the Norwich Vet Center. While a January 2007 treatment record from the above-cited medical facility is contained in the claims files, more recent records are absent. VA has a duty to obtain all relevant VA and Governmental records prior to adjudication of a claim. 38 U.S.C.A § 5103A(c)(3) (West 2002); see Bell v. Derwinski, 2 Vet. App. 611 (1992) (observing that any VA treatment records that have been generated up to and including the date of the Board's decision, whether or not filed in the claims file, are in the constructive possession of the Board and must be considered); see also 38 C.F.R. § 3.159(c)(2) (2010). Finally, the Veteran's wife has reported that he is enrolled in a Vocational Rehabilitation program. (See January 2007 statement, prepared by A. M. O.). Because these records might contain medical evidence showing an increase in severity of the Veteran's PTSD for the prescribed periods on appeal, the AMC/RO should attempt to obtain them on remand. See 38 C.F.R. § 3.159(c)(1). Accordingly, the case is REMANDED to the RO/AMC for the following action: 1. Obtain all treatment records, dating from January 2007 to the present, that pertain to the Veteran's treatment for PTSD from the Norwich Vet Center. All records/responses received should be associated with the claims files. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them and describe further action to be taken. 2. The RO/AMC must also obtain complete copies of any VA Vocational Rehabilitation records. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After any additional medical and vocational rehabilitation records are obtained and associated with the claims files pursuant to directives 1 and 2, the RO/AMC must arrange for the Veteran to undergo a VA psychiatric examination to ascertain the severity and manifestations of his service-connected PTSD. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner must review all pertinent records associated with the claims files and to comment on the severity of the Veteran's service-connected PTSD. The examiner must report all signs and symptoms necessary for rating the Veteran's PTSD under the applicable rating criteria. The examiner should also comment as to the impact of PTSD on the Veteran's daily activities and his ability to maintain employment. If it is not possible to do so, the examiner should so state. A complete rationale should be provided for any opinion expressed. 4. After the above-cited directives have been accomplished and any newly received evidence has been associated with the claims files, the RO/AMC must readjudicate the Veteran's claim for an increased rating in excess of 30 percent from September 19, 2005 to July 10, 2006, and 50 percent thereafter in accordance with Hart v. Mansfield, 21 Vet. App. 505, 508 (2007). If the benefit sought on appeal is not granted to the Veteran's satisfaction, send him and his representative a Supplemental Statement of the Case and give them a time to respond to it before returning the case to the Board for further appellate consideration. 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). 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). _________________________________________________ MICHAEL A. PAPPAS 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).