Citation Nr: 1125514 Decision Date: 07/07/11 Archive Date: 07/15/11 DOCKET NO. 08-19 695 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to an increased evaluation for posttraumatic stress disorder (PTSD), currently rated 50 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Bernard T. DoMinh, Counsel INTRODUCTION The Veteran served on active duty from July 1971 to July 1975. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision by the North Little Rock, Arkansas, Regional Office (RO) of the Department of Veterans Affairs (VA) which, inter alia, denied the Veteran's claim for an increased evaluation above 50 percent for service-connected PTSD. The Veteran and his representative presented oral testimony in support of the current appeal at hearings conducted at the RO before a Decision Review Officer in February 2008, and before the undersigned Acting Veterans Law Judge in December 2009. Transcripts of both hearings have been obtained and associated with the Veteran's claims files for the Board's consideration. For the reasons discussed below, the appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant and his representative if further action is required on their part. REMAND At the time of the Veteran's December 2009 hearing before the Board, he testified that he was not in receipt of disability benefits from the Social Security Administration (SSA). However, in the time since this hearing, while the case has remained in appellate status, the Veteran was granted disability benefits by SSA decision dated in November 2010, based on his clinically demonstrated unemployability due to several disabilities including PTSD. Although a copy of the SSA award letter is associated with the claims file, the actual medical records considered by SSA in arriving at its favorable determination are not. As these records are relevant to the present matter on appeal, the case should be remanded so that they may be obtained for inclusion in the evidence. See Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992); Tetro v. Gober, 14 Vet. App. 110 (2000); Baker v. West, 11 Vet. App. 163, 169 (1998). As the SSA has recently determined that the Veteran has met its requirements to be entitled to payment of disability benefits, on remand the Veteran should be scheduled for a VA psychiatric examination to reassess the severity of his PTSD. In this regard, the Board notes that the Veteran had been previously denied Chapter 31 vocational rehabilitation benefits based on the clinical findings of a VA clinical psychologist who, in a March 2006 report, addressed the impact of the Veteran's PSTD on his individual occupational capacity. Therefore, the clinical findings of this March 2006 report should be reviewed, considered, and addressed by the examiner who conducts the psychiatric examination to be scheduled on remand, and his conclusions regarding the severity of the Veteran's PTSD should be made in the context of a review of this report and the relevant records obtained from SSA. As the current appeal is to be remanded for further evidentiary development, the RO should take advantage of this opportunity to ensure that the most current records pertaining to his psychiatric treatment be obtained for inclusion in the evidence. In this regard, the Veteran has reported in correspondence dated in March 2011 that he received inpatient treatment at the PTSD clinic at the Fort Roots VA Hospital from December 2009 to February 2010. As these records are not presently associated with his claims files, the RO should undertake the appropriate efforts to obtain them on remand. [See Murphy v. Derwinski, 1 Vet. App. 78, 82 (1990); Jolley v. Derwinski, 1 Vet. App. 37, 40 (1990): VA has a statutory duty to assist the claimant by securing any relevant VA, military, or other governmental records. See 38 U.S.C.A. § 5103A(b) (West 2002); Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992): When reference is made to pertinent medical records, VA is on notice of their existence and has a duty to assist the Veteran to attempt to obtain them.] Accordingly, in view of the foregoing discussion, the case is REMANDED to the RO, via the AMC, for the following actions: 1. After obtaining from the Veteran a detailed report of all sources of counseling and treatment for his PTSD (both private and VA) and all necessary authorizations, the RO should obtain these identified records and associate them with the Veteran's claims files. These records should include, but are not limited to, those that pertain to his reported inpatient treatment at the Fort Roots VA Hospital PTSD clinic from December 2009 to February 2010. 2. The RO should contact the SSA and request that it provide copies of the medical records considered by this agency in its adjudication of the Veteran's claim for SSA disability benefits. All actions to obtain the aforementioned requested records should be documented fully in the claims files. 3. After the above development has been undertaken, the RO should provide the Veteran with a psychiatric examination to determine the current state of his service-connected PTSD. The Veteran's claims files and his relevant clinical history should be made available for the examiner's review in connection with the examination. In this regard, the examiner's conclusions regarding the current severity of the Veteran's PTSD should be made in the context of the SSA records associated with the claims files and the March 2006 findings of the VA clinical psychologist who assessed the impact of the Veteran's PTSD on his individual occupational capacity pursuant to his claim for Chapter 31 VA vocational rehabilitation benefits. The examiner should note in his/her report that the Veteran's claims files have been reviewed. Following the examination, the examiner should present clinical findings in the examination report with regard to the following: (a.) Is the Veteran's PTSD currently manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as: 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., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking, disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships? (b.) Is the Veteran's PTSD currently manifested by occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships? (c.) Is the Veteran's PTSD currently manifested by total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name? (d.) Any other current manifestations of PTSD should be identified and, if present, the severity thereof should be identified and discussed. The examiner should provide a complete rationale for any opinion provided. If he/she is unable to provide an opinion without resorting to speculation or conjecture, he/she should so state in his/her discussion and explain why. 4. Afterwards, the RO should review the claims files to ensure that the aforementioned development and remand instructions have been fully and properly executed. Any noncompliance found should be rectified with the appropriate development. 5. Thereafter, the RO should readjudicate the Veteran's claim of entitlement to an evaluation greater than 50 percent for PTSD. Such readjudication should take into account whether "staged" ratings are appropriate. Hart v. Mansfield, 21 Vet. App. 505 (2007). If the maximum benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case which takes into account all evidence received by VA since the July 2009 statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further appellate review, if appropriate. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ TANYA A. SMITH 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).