Citation Nr: 1113281 Decision Date: 04/05/11 Archive Date: 04/15/11 DOCKET NO. 07-32 030 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD), on appeal from an initial grant of service connection. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The appellant served on active duty from November 1966 to November 1968. He served in the Republic of Vietnam where he earned the Combat Infantryman Badge. This case comes to the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Montgomery, Alabama. In that action, the RO granted service connection for PTSD and assigned a 30 percent disability rating, effective October 21, 2005. The appellant was notified of that action and he has appealed to the Board, asking that a higher rating be assigned. 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 conjunction with the appellant's claim for entitlement to service connection for PTSD, he underwent a VA psychiatric examination in December 2005. Upon completion of the examination, the appellant was diagnosed as suffering from "moderate" PTSD. A Global Assessment of Functioning (GAF) score of 56 was assigned. The examiner noted that the appellant's symptoms included intrusive recall and memories; moreover, the examiner insinuated that the appellant's ability to work and socialize was affected, but not "severely" impaired. This examination was included in the appellant's claim folder and the information was subsequently reviewed by the RO. Service connection was granted and a 30 percent disability rating was awarded in accordance with the rating criteria found at 38 C.F.R. Part 4, Diagnostic Code 9411 (2005). The appellant was notified of that action and he then appealed to the Board, claiming that the disability should be assigned a higher rating. A second examination was performed in October 2008. The examiner diagnosed the appellant with PTSD. However, she also concluded that he was suffering from a depressive disorder not otherwise specified, and that the symptoms from both mental disorders overlapped one another. A GAF score of 58 was assigned. The examiner reported that the appellant continued to experience sleep disruption, irritability, and mild social withdrawal. The examiner did insinuate that the appellant's industrial capabilities were affected by his PTSD but she did not provide any additional information with respect to this assertion. Contained in the claims folder are the appellant's VA medical treatment records from 2005 to 2009. These records show that over the course of the appeal, the appellant has sought treatment, in some manner or the other, from the VA for his PTSD. A review of these records show GAF scores of 45 (February 2007) and 46/48 (September 2007). The records further indicate that the appellant has been prescribed medications for the treatment of his PTSD. The record also contains statements from the appellant's private medical provider. Of note are letters from the doctor, dated August 2008 and October 2009. In those letters, the examiner hypothesized that the appellant's industrial capabilities were affected by his service-connected PTSD. The examiner also indicated that the appellant's ability to work was also affected by other service-connected and nonservice-connected disorders. Through the submission of the private medical records, which have not been commented thereon by VA examiners, the appellant has averred that since last being evaluated by VA personnel with respect to his service-connected psychiatric disorder, his disability has become more severe. Pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4)(i) (2010). The United States Court of Appeals for Veterans Claims, hereinafter the Court, has held that when an appellant alleges that his/her service-connected disability has worsened since the last examination, a new examination may be required to evaluate the current degree of impairment. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (an appellant is entitled to a new examination after a two-year period between the last VA examination and the appellant's contention that the pertinent disability has increased in severity). The Court has held that when an appellant claims that a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition, VA must provide a new examination. See Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). In this instance, the most recent complete psychiatric examination of the appellant occurred approximately two and one half years ago. However, since that time a statement has been provided by the private medical care provider concerning how the appellant's PTSD affected his employment restrictions, which is component of the rating criteria found at 38 C.F.R. Part 4, Diagnostic Code 9411 (2010). Hence, under the circumstances, the Board is of the opinion another VA examination should be scheduled to determine the current extent of symptomatology and status of the service-connected PTSD. As the case is being remanded, the Veteran should be provided with an opportunity to submit or identify any additional medical documentation that would be relevant to this appeal, to include the medical records of R. Gober, M.D. Moreover, all VA records are constructively of record. Bell v. Derwinski, 2 Vet. App. 611 (1992). Therefore, all the Veteran's VA treatment records since April 30, 2009, should be obtained and associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should contact the appellant and ask that he identify all sources of medical treatment received from 2004 to the present for his psychiatric disorder, and to furnish signed authorizations for release to the VA of private medical records in connection with each non-VA source identified. The Veteran should also be requested to provide the medical records of R. Gober, M.D., dating from 2004, or sufficient information that would allow the RO/AMC to request the records on his behalf. Copies of the medical records from all sources (not already in the claims folder) should then be requested. Any response received should be memorialized in the appellant's claims folder. All records obtained should be added to the claims folder. If requests for any private or non-VA government treatment records are not successful, the RO/AMC should inform the appellant of the nonresponse so that he will have an opportunity to obtain and submit the records himself, in keeping with his responsibility to submit evidence in support of his claim. See 38 C.F.R. § 3.159 (2010). 2. The RO should associate with the claims folder VA medical records dating from April 30, 2009. If there are none, this must be documented in the claims folder. 3. Thereafter, the appellant should be scheduled for a VA psychiatric examination. The examiner should be provided a copy of this remand together with the appellant's entire claims folder, and the examiner is asked to indicate whether he or she has reviewed the claims folder. All appropriate tests should be conducted. The examiner should determine the extent and severity of the service-connected PTSD. Said examiner should assign a numerical code under the Global Assessment of Functioning Scale (GAF) provided in the Diagnostic and Statistical Manual for Mental Disabilities, and he/she should identify what symptoms the appellant currently manifests, or has manifested, that are attributable to his service-connected mental disorder. The examiner should comment on any GAF measurement volatility noted in the claims folder, and whether said volatility indicates that the appellant has been decompressing or improving or not stabilizing over the course of this appeal. Also, the examiner should comment on whether the appellant's industrial capabilities are affected, or have been affected, by his PTSD, and if so, an estimation of this effect should be provided. If other psychiatric conditions are diagnosed, the examiner should differentiate the symptoms of those disorders which the examiner determines are not related to PTSD. If this is not practicable, the examiner should so state in the examination report. The examiner must provide a comprehensive report including rationales for all opinions and conclusions. 4. The AMC/RO should review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the report of examination. If the requested report does not include fully detailed descriptions of pathology and all test reports, special studies or adequate responses to the specific opinions requested, the report must be returned for corrective action. 38 C.F.R. § 4.2 (2010); see also Stegall v. West, 11 Vet. App. 268 (1998). 5. Thereafter, the RO/AMC should readjudicate the claim on appeal. If the benefit sought on appeal remain denied, the appellant and his representative should be provided with a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claims for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response before the case is returned to the Board. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. The appellant is hereby placed on notice that pursuant to 38 C.F.R. § 3.655 (2010) failure to cooperate by attending the requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). 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). _________________________________________________ S. S. TOTH 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).