Citation Nr: 1135131 Decision Date: 09/20/11 Archive Date: 09/23/11 DOCKET NO. 07-38 917 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an initial disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD H. E. Costas, Counsel INTRODUCTION The Veteran served on active duty from July 1972 to July 1994. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an August 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In that decision, the RO granted service connection for PTSD and assigned a 10 percent disability evaluation effective from November 18, 2005. During the pendency of the appeal, the RO issued a statement of the case in October 2007 and increased the Veteran's disability evaluation for PTSD to 30 percent effective from November 18, 2005. However, applicable law mandates that when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). The Board also notes that the Veteran submitted a statement in December 2007 in which he claimed entitlement to service connection for a sleep disorder, to include as secondary to his service-connected PTSD. However, that matter has not been adjudicated by the RO. Therefore, the Board does not have jurisdiction over it, and the issue is referred to the RO for appropriate action. 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 The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010). In this case, it appears that there may be additional treatment records that are not associated with the claims file. In this regard, the Veteran submitted a statement in February 2010 in which he requested that his VA treatment records dated from 2007 to the present be obtained. The claims file does not contain any VA medical records dated after April 2007. 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 a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462 (1998); Bell v. Derwinski, 2 Vet. App. 611 (1992). VA has a duty to seek such records. 38 C.F.R. § 3.159(c) (2010). Moreover, the Veteran told the July 2006 VA examiner that he had received private psychiatric treatment from H.J., M.D (initials used to protect the Veteran's privacy), in 2005. However, the claims file does not contain those treatment records. Instead, it only contains psychiatric evaluation reports dated in April 2006 and March 2007. Therefore, the RO should attempt to obtain and associate with the claims file any and all treatment records pertaining to the Veteran's PTSD. The Board also notes that the Veteran was most recently afforded a VA examination in October 2008; however, as the case is already being remanded to obtain additional treatment records, the Board finds that a VA examination should be afforded for the purpose of ascertaining the current severity and manifestations of the Veteran's service-connected PTSD. Accordingly, the case is REMANDED for the following action: 1. The RO should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his service-connected PTSD. After acquiring this information and obtaining any necessary authorization, the RO should obtain and associate these records with the claims file. The RO should make a specific request for private treatment records dated in 2005 from H.J, M.D., who provided the April 2006 and March 2007 psychiatric evaluation reports. The RO should also obtain any outstanding VA medical records dated from April 2007 to the present. 2. The Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his 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 and to comment on the severity of the Veteran's service-connected PTSD. The examiner should report all signs and symptoms necessary for rating the Veteran's PTSD under the General Rating Formula for Mental Disorders. The findings of the examiner should address the level of social and occupational impairment attributable to the Veteran's PTSD. In particular, he or she should indicate whether the Veteran has occupational and social impairment with reduced reliability and productivity; occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood; or, total occupational and social impairment. 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), copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. After completing these actions, the RO should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 4. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefits sought are not granted, the Veteran should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). _________________________________________________ JESSICA J. WILLS 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).