Citation Nr: 1101319 Decision Date: 01/11/11 Archive Date: 01/20/11 DOCKET NO. 07-38 593 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The Veteran served on active duty from July 1951 to July 1955. This case originally came before the Board of Veterans' Appeals (Board) on appeal of a December 2006 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, as well as from a September 2007 decision by the VARO in Newark, New Jersey. At the time of the December 2006 rating decision, the RO granted service connection (and a 10 percent evaluation) for posttraumatic stress disorder, effective May 8, 2006, the date of receipt of the Veteran's original claim for service connection. In the subsequent rating decision of September 2007, the RO increased the Veteran's 10 percent evaluation for service- connected posttraumatic stress disorder to 30 percent, once again, effective from May 8, 2006. The Veteran voiced his disagreement with that award of benefits, with the result that, in a decision of March 2010, the Board denied entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder. At that same time, the Board granted entitlement to service connection for tinnitus, and remanded for additional development the issue of entitlement to service connection for the residuals of a back injury. That issue is at the present time undergoing further development, and, accordingly, is not currently before the Board. The Veteran subsequently appealed the Board's denial of an increased rating for service-connected posttraumatic stress disorder to the United States Court of Appeals for Veterans Claims (Court), which, in a September 2010 Order, vacated the Board's March 2010 decision to the extent that decision denied entitlement to an increased rating for service-connected posttraumatic stress disorder, and, in so doing, remanded the Veteran's case to the Board for action consistent with a September 2010 Joint Motion for Partial Remand (Joint Motion). The case is now, once more, before the Board for appellate review. Good or sufficient cause having been shown, the Veteran's appeal has been advanced on the Board's docket under the provisions of 38 U.S.C.A. § 7107 (West 2002) and 38 C.F.R. § 20.900(c) (2010). Finally, at the time of its September 2010 Order, the Court noted that it was vacating and remanding that portion of the Board's decision which "denied entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder "from December 30, 2002 forward..." However, the date December 30, 2002 has no particular relevance in this case, inasmuch as the issue on appeal involves an initial rating dating from May 8, 2006. To the extent the Veteran may be seeking entitlement to an effective date earlier than May 8, 2006 for the award of service connection for posttraumatic stress disorder, that issue is not at this time before the Board. Finally, for reasons which will become apparent, this appeal is being REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. VA will notify you if further action is required on your part. REMAND The Joint Motion noted that the Board, at the time of its March 2010 decision denying entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder, had failed to provide a statement of reasons and bases which was adequate for judicial review. More specifically, it was noted that the Board [contrary to the holding in Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002)] had restricted its analysis of the severity of the Veteran's service-connected posttraumatic stress disorder to a discussion of the diagnostic criteria and specific symptomatology which the Veteran failed to display. It was indicated that the Board stated that "the psychiatric evaluations conducted during the current appeal have not demonstrated flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; and/or disturbances of motivation and mood." However, it was concluded that the Board failed to adequately discuss material evidence demonstrating the Veteran's level of occupational and social impairment by addressing symptoms such as: constant nightmares, hypervigilance, depression, diminished interest, poor energy, poor concentration, and a limited social network, as noted by VA examiners at the time of VA psychiatric examinations in July 2006 and September 2007. Further noted at the time of the September 2010 Joint Motion was that, during the course of a hearing before a Veterans Law Judge in January 2010, the Veteran had testified that he was receiving ongoing psychiatric treatment at VA medical facilities, including the VA Clinic located in Brick (New Jersey), and the Ventnor (New Jersey) Vet Center. Under the circumstances, it was felt that the Board should attempt to obtain the Veteran's most recent VA treatment records dating "from November 2007 onward." Finally, the Board notes that, based on a review of the Veteran's claims folder, it would appear that he last underwent a VA psychiatric examination for compensation purposes in September 2007, more than three years ago. Moreover, since the time of that examination, the Veteran has received ongoing VA psychiatric treatment, as well as undergone a private psychological examination in October 2010. Under the circumstances, the Board is of the opinion that an additional, more contemporaneous VA examination would be appropriate prior to a final adjudication of the Veteran's current claim for increase. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); see also Proscelle v. Derwinski, 2 Vet. App. 629 (1992). Accordingly, in light of the aforementioned, and in particular, the above-referenced September 2010 Joint Motion, the case is REMANDED to the RO/AMC for the following actions: 1. Any pertinent VA or other inpatient or outpatient treatment records, to include any and all records of psychiatric treatment at the Brick (New Jersey) VA Clinic and the Ventnor (New Jersey) Vet Center, as well as records subsequent to November 2010, the date of the most recent pertinent evidence of record, should be obtained and incorporated in the claims folder. The Veteran should be requested to sign the necessary authorization for release of any private medical records to the VA. All attempts to procure such records should be documented in the file. If the RO/AMC cannot obtain records identified by the Veteran, a notation to that effect should be included in the claims file. In addition, the Veteran and his representative should be informed of any such problem. 2. The Veteran should then be afforded an additional VA psychiatric examination in order to more accurately determine the current severity of his service-connected posttraumatic stress disorder. The RO is advised that the Veteran must be given adequate notice of the date and place of any requested examination. Moreover, the Veteran is to be advised that failure to report for a scheduled VA examination without good cause may have an adverse affect on his claim. As regards the requested examination, all pertinent symptomatology and findings should be reported in detail, and all appropriate studies should be performed. Moreover, all information, once obtained, must be made a part of the Veteran's claims folder. The claims folder and a separate copy of this REMAND must be made available to and reviewed by the examiner prior to completion of the examination. Moreover, a notation to the effect that this record review has taken place must be included in the examination report. 3. The RO should then readjudicate the Veteran's claim for an initial evaluation in excess of 30 percent for service- connected posttraumatic stress disorder. Should the benefit sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case (SSOC). The SSOC must contain notice of all relevant action taken on the claim for benefits since the issuance of a Statement of the Case (SOC) in September 2007. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome in this case. The Veteran need take no action unless otherwise notified. 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 The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C.A. §§ 5109B, 7112). _________________________________________________ K. J. ALIBRANDO 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) (2004).