Citation Nr: 1133036	
Decision Date: 09/07/11    Archive Date: 09/15/11

DOCKET NO.  10-02 014	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to a disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

H. Yoo, Associate Counsel


INTRODUCTION

The Veteran had active service from January 1953 to October 1954 with service in Korea.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in St. Petersburg, Florida.

The Board notes that this was the subject of a prior November 2010 Board decision; however, a March 2011 United States Court of Appeals for Veterans Claims (Court) Order, implementing a November 2010 Joint Motion for Remand (JMR), vacated the November 2010 Board decision that denied an increased rating for the Veteran's service connected PTSD.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010).  38 U.S.C.A. § 7107(a)(2) (West 2002).

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

Unfortunately, a remand is required in this case.  Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the veteran's claim so that he is afforded every possible consideration.  VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim.  38 U.S.C.A. §§ 5107(a) 5103A (West 2002 & Supp. 2010); 38 C.F.R. § 3.159(c) (2010).

As stated above, this matter was subject to a JMR. The Veteran and his representative argued that the November 2010 Board decision did not address all of the Veteran's PTSD symptomatology and his current disability rating does not accurately reflect his current condition. 

The Board notes the most recent VA PTSD examination took place in July 2008; it is currently three since his last VA examination.  Therefore, the Veteran should be afforded a VA examination to determine the current severity of his disabilities.  38 C.F.R. § 3.159(c)(4) (2010); Green v. Derwinski, 1 Vet. App. 121 (1991) (duty to assist may include conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one). 

Where the record does not adequately reveal the current state of disability, the fulfillment of the duty to assist includes providing a thorough and contemporaneous medical examination that considers the claimant's prior medical examinations and treatment.  See Floyd v. Brown, 9 Vet. App. 88, 93 (1996); Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994).

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010).  Expedited handling is requested.)

1. The Veteran should be afforded a VA examination with the appropriate specialist(s) to determine the current level of disability due to his service- connected PTSD.  The claims folder should be made available to the examiner for review before the examination.  The examiner should set forth all symptomatology associated with the Veteran's PTSD, namely a discussion of his occupational and social impairment.

2. Thereafter, the AMC should re-adjudicate the Veteran's claim for an increased rating for his PTSD.  If any benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case and an opportunity to respond.  The case should then be returned to the Board, if in order.

The appellant has the right to submit additional evidence and argument on the matter or matters 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).



_________________________________________________
J. A. MARKEY
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).