Citation Nr: 1237146 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 09-20 564 ) 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 service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The Veteran served on active duty from April 1968 to February 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal of a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran and his wife testified at a personal hearing before the undersigned sitting at the RO in June 2012, and a transcript of the hearing is of record. VA medical records dated from August 2004 to April 2012 were added to the claims files after the most recent supplemental statement of the case in November 2011 along with a waiver of RO review. See 38 C.F.R. § 20.1304 (2012). 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 Veteran testified at his June 2012 travel board hearing that he believed that his PTSD symptoms have increased in severity since the most recent VA evaluation in October 2011. The Board would also note that the Veteran testified that he received treatment for his PTSD from a non-VA medical provider, possibly a state mental health facility; these records are not currently on file. Consequently, there is a need to determine the current severity of the Veteran's service-connected PTSD and to attempt to obtain any relevant treatment reports that are not currently on file. Accordingly, the case is remanded for the following actions: 1. The RO must contact the Veteran and request that he provide the names, addresses, and dates of treatment of all health care providers, both VA and non-VA, who have treated him for PTSD since 2007, to include any state mental health provider. The RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. After the above, the Veteran must be scheduled for a VA psychiatric examination to determine the current severity of his service-connected PTSD. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. The examiner must provide accurate and fully descriptive assessments of all psychiatric symptoms, taking into consideration the lay testimony presented by the Veteran. The examiner must comment upon the presence or absence, and the frequency or severity of the Veteran's PTSD symptomatology under the General Rating Formula for Mental Disorders, 38 C.F.R. § 4.130, Diagnostic Code 9411. In other words, the examiner will discuss the PTSD symptomatology relevant to the Veteran's current disability, such as depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; mild memory loss (such as forgetting names, directions, and recent events); flattened affect; circumstantial, circumlocutory, or stereotyped speech; 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 or mood; difficulty in establishing and maintaining effective work and social relationships; suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately, or 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); an inability to establish and maintain effective relationships; 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; and memory loss for names of close relatives, own occupation, or own name. The examiner must enter a complete multi-axial evaluation, and assign a GAF score together with an explanation of what the score represents in terms of the Veteran's psychological, social, and occupational functioning. The report prepared must be typed. 3. The RO must review the resulting examination report to ensure that it is in compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. The RO must notify the Veteran that it is his responsibility to report for the scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. After completing the above actions, and any other indicated development, the claim for an evaluation in excess of 30 percent for service-connected PTSD must be re-adjudicated. If the benefit sought on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for further appellate consideration, if otherwise in order. 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). The RO and the Veteran are advised that the Board is obligated by law to ensure that the RO complies with its directives, as well as those of the appellate courts. It has been held that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2011). _________________________________________________ L. M. BARNARD Acting 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 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) (2) (2012).