Citation Nr: 1127748 Decision Date: 07/25/11 Archive Date: 08/02/11 DOCKET NO. 06-31 659A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an initial evaluation in excess of 50 percent for the service-connected post traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The Veteran served on active duty from August 1965 to June 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in November 2003 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In that decision the RO granted service connection for PTSD, and assigned a 50 percent disability rating, effective from August 17, 1998. The Veteran disagreed. As the Veteran perfected an appeal to the initial rating assigned following the grant of service connection for PTSD the Board has characterized this issue in accordance with the decision of the United States Court of Appeals for Veterans Claims (Court) in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (appeals from original awards are not to be construed as claims for increased ratings), which requires consideration of the evidence since the effective date of the grant of compensation. The Board denied the claim in November 2009, and the Veteran thereafter appealed the Board's decision to the Court. In a March 2011 Order, the Court vacated the November 2009 Board decision and remanded the matter to the Board for development consistent with the parties' March 2011 Joint Motion for Remand (Joint Motion). 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 In March 2011, the Court ordered compliance with the March 2011 Joint Motion. The parties agreed that, in its November 2009 decision, the Board "did not provide an adequate statement of reasons or bases for denying Appellant's claim." For the reasons set forth below, the Veteran's claim must be remanded. In July 2011, the Board received a letter, dated July 2011, from a VA staff psychiatrist with the Veteran's waiver of his right to review of this evidence by the Agency of Original Jurisdiction (AOJ) before review of it by the Board. The psychiatrist, P.E.K, M.D., indicated that he provided care to the Veteran at the Louis Stokes Cleveland VA Medical Center (VAMC). He added that the Veteran was incapable of sustaining any employment due to his PTSD symptoms, and that psychiatric treatment will, more likely than not, be incapable of restoring the Veteran's capacity to sustain any type of employability. The Board notes that the Veteran was granted individual unemployability benefits in November 2006. See November 2006 rating decision. Review of the claims file shows that the most recent VA outpatient psychiatric-based treatment records are dated in August 2006. 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 that claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). As such, complete medical records -- dated from August 2006 to the present - of psychiatric or mental health treatment afforded the Veteran at VA medical facilities, including the Louis Stokes Cleveland VAMC and particularly including that treatment provided by P.E.K., M.D. must be obtained and associated with the claims file. 38 C.F.R. § 3.159(c)(2) (2010). The Board also notes that the Veteran was last afforded a VA examination for PTSD in October 2006. This is more than four years ago. In some instances, 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). In this case, in an October 2009 Appellant's Brief, the Veteran's representative argued that the Veteran's PTSD symptoms, including depression, occasional nightmares, intrusive thoughts, sleep disturbances, exaggerated startle response, hypervigilance, sense of foreshortened future, and irritability, throughout the appeal period more nearly approximated the criteria for a disability evaluation in excess of 50 percent. The Board finds that this represents allegations of worsening symptoms since October 2006. In light of the factors noted above, the Board concludes that, in this case, another VA examination is needed to render a decision on the claim. 38 C.F.R. § 3.159(c)(4). Therefore, in order to give the Veteran every consideration with respect to the present appeal and to ensure due process, it is the Board's opinion that further development of the case is necessary. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain all VA treatment records of psychiatric or mental health treatment provided to the Veteran, to include at the Louis Stokes Cleveland VAMC, from August 2006 to the present. Records of treatment provided to the Veteran by P.E.K., M.D., the author of the July 2011 letter in the claims file, should specifically be sought. Efforts to obtain these records should only end if they do not exist or further efforts to obtain them would be futile. 38 C.F.R. § 3.159(c)(2). If the records are unavailable, the claims file must be properly documented as to the unavailability of these records. 2. The RO/AMC should schedule the Veteran for a VA examination to ascertain the current 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 is requested to review all pertinent records associated with the claims file, including statements supplied by the Veteran and the October 2006 VA examination report, and to comment on the current severity of the Veteran's service-connected disability. The examiner should report all signs and symptoms necessary for rating the Veteran's service-connected PTSD under the applicable rating criteria. 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), a copy of this REMAND and all pertinent records in the appellant's claims file, or in the alternative, the claims file itself, must be made available to the examiner for review. 3. The Veteran is hereby notified that it is his responsibility to report for a scheduled VA examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2010). In the event that the Veteran does not report for any scheduled examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 4. Thereafter, the RO/AMC must review the claims folder and ensure that the foregoing development actions, as well as any other indicated development, have been conducted and completed in full. If the response is deficient in any manner, the RO must implement corrective procedures. Stegall v. West, 11 Vet. App. 268 (1998). 5. Following any other indicated development, the RO should readjudicate the appealed issue in light of all the evidence of record. In so doing, the RO/AMC should also consider whether "staged" ratings are appropriate in light of Fenderson. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a Supplemental Statement of the Case that includes a summary of any additional evidence submitted, applicable laws and regulations, and the reasons for the decision. They should then be afforded an applicable time to respond thereto. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The appellant 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 or by the Court 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). _________________________________________________ KATHLEEN K. GALLAGHER 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).