Citation Nr: 1129891 Decision Date: 08/12/11 Archive Date: 08/23/11 DOCKET NO. 08-07 234 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to an initial increased rating for posttraumatic stress disorder (PTSD), currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Shabnam Keyvan INTRODUCTION The Veteran served on active duty from October 1965 to October 1967. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from the June 2007 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas granted service connection for PTSD and evaluated the disability as 10 percent disabling. During the pendency of the Veteran's appeal, and specifically in the January 2008 rating action, the RO increased the disability evaluation for the service-connected PTSD to 30 percent, effective from October 26, 2006 (date of receipt of claim). See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (where evidence indicates that the degree of disability increased or decreased during appeal period following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found). The Veteran has not expressed satisfaction with this grant. Accordingly, the issue of entitlement to an initial increased rating for the service-connected PTSD remains in appellate status for the entire appeal period. AB v. Brown, 6 Vet. App. 35 (in which the United States Court of Appeals for Veterans Claims (Court) stipulated that, unless a veteran expresses a desire for a specific rating for a service-connected disability, he/she is presumed to be seeking the maximum benefit permitted under the regulations). For the reasons set forth below, this appeal is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran 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). Here, the Veteran's service-connected PTSD is currently evaluated as 30 percent disabling. He contends that his psychiatric symptoms are more severe than this current disability rating reflects. After a complete and thorough review of the claims folders, the Board finds that a remand of the Veteran's increased rating claim for his service-connected PTSD is required to allow for further development of the record. During the June 2007 VA examination, the Veteran recalled his service in Vietnam and indicated that he was exposed to a high level of traumatic stress in service. After service, the Veteran enrolled in college for one semester, but left to work as a locomotive engineer for the railroad, a job he held for the next forty years. According to the Veteran, his PTSD symptoms have increased in frequency and intensity since his retirement because he now has more time on his hands and is unable to distract himself as easily as before. Prior to his retirement, he would experience episodes of depression once a month or more during which he would isolate himself, sometimes for three days at a time. Since he retired, these episodes occur more frequently. He has been married twice and describes his current marriage to his wife as "rocky." It appears that he has a wide array of hobbies, most of which are solitary in character, and, when he does spend time with his friends, these activities usually involve drinking alcohol. According to the Veteran, he does not talk to people about his in-service experiences and claims to have lost interest in activities that he once enjoyed prior to his retirement. He also describes himself as hypervigilant and states he has difficulty getting close to people, and tends to detach himself from others - even his family members. During the mental evaluation, the Veteran was shown to be oriented to person, place and time, and he denied any hallucinations or delusions. In addition, the Veteran also denied having any suicidal or homicidal ideations as well as any panic attacks or obsessive/compulsive behaviors. Based on her discussion with, and mental evaluation of, the Veteran, the examiner diagnosed the Veteran with chronic severe PTSD and assigned him a global assessment functioning (GAF) of 60. In the Integrated Summary and Conclusion section, the examiner indicated that the Veteran is typical of many veterans with PTSD, "in that he has experienced symptoms throughout his life as a result of combat service." Based on the examiner's assessment, the Veteran experiences intrusive thoughts and memories and manages to avoid these thoughts through isolation and drinking. He describes himself as irritable at home and at work, and credits the railroad union for not losing his job. According to the Veteran, as the rules continued to become more stringent at work, "he had less leeway and was finding the pressure at work [to be] overwhelming." The Veteran states that he was glad to retire early but that, since his retirement, he does not have as many distractions to occupy himself with, and his PTSD symptoms as well as his memories of Vietnam have increased. According to the examiner, the Veteran's PTSD symptoms have resulted in deficiencies in several areas of his life, to include his work, as well as his relationships with his family. In the February 2008 substantive appeal, the Veteran contended that his PTSD symptoms are more severe than the disability rating reflects. Specifically, he states that he currently experiences panic attacks once a week or more, that he has episodes of impairment in his short and long term memory on a daily basis, and that he often experiences problems with his mood, and does not feel motivated for days at a time. The Veteran added that he left his job as soon as possible due to conflicts with others and his lack of desire to work for others. He further noted that his friends have difficulty understanding him and have distanced themselves from him. The Board finds that the statements made by the Veteran in his substantive appeal reflect his belief that his service-connected PTSD has worsened since his last VA examination. Indeed, the Veteran has not been afforded another VA psychiatric examination since the June 2007 evaluation, over four years ago. The duty to assist includes providing a thorough and contemporaneous medical examination, especially where it is necessary to determine the current level of a disability. See Peters v. Brown, 6 Vet. App. 540, 542 (1994). Moreover, 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). As it has been over four years since the Veteran's last VA examination and the Board is precluded from reading its own unsubstantiated medical conclusions and is instead bound by the medical evidence of record on these matters, further development is required. See Jones v. Principi, 16 Vet. App. 219, 225 (2002), citing Smith v. Brown, 8 Vet. App. 546, 553 (1996) (en banc); Colvin v. Derwinski, 1 Vet. App. 171 (1991). In addition, as this matter is being returned for further development, an effort should be made to obtain any medical records pertaining to ongoing treatment the Veteran has received for his psychiatric condition that are not already on file. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). Thus, the AOJ must attempt to obtain updated VA treatment records pertinent to the Veteran's claim and afford him another examination to determine the current severity of his service-connected PTSD. [For the reasons set forth herein, the medical evidence currently of record is insufficient for the Board's adjudication of this issue.] Accordingly, the case is REMANDED for the following action: 1. Request records of relevant psychiatric treatment that the Veteran may have received since February 2007 at the Hays VA Community Based Outpatient Clinic (CBOC). Copies of such records which are available should be associated with the claims folder. 2. Then, make arrangements for the Veteran to be afforded a VA psychiatric examination to determine the current nature and extent of his service-connected PTSD. The claims file, including a copy of this REMAND, must be made available to the examiner for review, and the examination report should reflect that such review was completed. The examiner should identify the nature, frequency, and severity of all current manifestations of PTSD. The examiner should also assign a GAF score and provide an explanation of the assigned score. Also, the examiner should specifically comment on the impact of the Veteran's PTSD upon his social and industrial activities, including his ability to obtain and to maintain employment. A rationale for all opinions expressed must be provided. 3. Following completion of the above, re-adjudicate the increased rating issue on appeal. If the decision remains in any way adverse to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2010). The Veteran has the right to submit additional evidence and argument on the matter that 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. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). _________________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).