Citation Nr: 1237237 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 06-30 845 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an initial evaluation in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD) with adjustment disorder and depressed mood prior to January 17, 2012 and in excess of 50 percent since January 17, 2012. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. M. Kreitlow INTRODUCTION The Veteran had active military service from June 1980 to June 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In July 2012, the RO recharacterized the Veteran's service-connected psychiatric disability and increased the evaluation to 50 percent, effective January 17, 2012. As this increased rating does not constitute a full grant of all benefits possible, and as the Veteran has not withdrawn his claim, the claim is still active. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The issue as stated on the title page has been revised to reflect these changes. The appeal is 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 Board previously remanded the Veteran's claim in September 2010 and December 2011 for additional development. Unfortunately, the Board finds that further development is needed at this time in order to accord the Veteran a full and fair adjudication of his claim. In its prior remands, the Board requested that neuropsychological testing be conducted to determine whether the Veteran's neuropsychological functioning has worsened compared to testing conducted in 1997 (of which records are in the claims file). In addition, if a worsening was shown, an opinion was requested as to the likelihood that said worsening is proximately due to or the result of the Veteran's service-connected psychiatric disorder. Neuropsychological testing has been requested because, as set forth in the September 2010 remand, the Veteran's complaints as seen in the 2006 treatment records appear to indicate a possible worsening of his cognitive functions (i.e., his complaints regarding concentration, memory and creativity) compared with the 1997 levels when he did not make such complaints. Specifically, the Veteran and his representative have argued that the Veteran had great difficulty passing a test needed to maintain his employment as a gym aid with a local middle school because his service-connected psychiatric disorder caused difficulties with concentration and motivation. The Veteran reportedly passed the ACT WorkKeys(r) test on the fourth try, and only after he attended Sylvan Learning Center for more than two years. No neuropsychological testing has been conducted as previously instructed in the two prior remands. Nor did the last VA examiner discuss whether the Veteran has cognitive impairment that is the result of his service-connected psychiatric disorder such that neuropsychological testing may be deemed unnecessary. Consequently, the Board has no choice but to remand the Veteran's claim again so that such testing can be accomplished. The Board is obligated by law to ensure compliance with its directives, as well as those of the appellate courts. 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). In addition, the Veteran's representative correctly notes that the AMC failed to consider whether the newly obtained evidence established that a disability rating greater than 30 percent is warranted for the period prior to January 17, 2012. The representative also noted that new VA treatment records were obtained dating back to 2006. The Board agrees that the AMC, in its July 2012 Supplemental Statement of the Case (SSOC), solely focused on the current severity of the Veteran's service-connected psychiatric disability and failed to address whether the evidence establishes a higher disability rating earlier than January 17, 2012. Thus, on remand, the AMC should consider all evidence received since the December 2011 Board remand and readjudicate whether an initial disability rating in excess of 30 percent prior to January 17, 2012 is warranted. Finally, the claims file indicates that the Veteran receives disability benefits from the Social Security Administration (SSA). The RO requested those records in June 2005, but no response was received. The duty to assist extends to obtaining SSA records where they are relevant to the issue under consideration. Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010). Accordingly, the case is REMANDED for the following action: 1. Obtain a copy of the SSA decision awarding benefits to the Veteran - as well as the medical records used in support of that determination. All such available documents should be associated with the claims folder. If no such documents are available, that fact should also be noted in the file. 2. Then, schedule the Veteran for a VA examination for the sole purpose of having neuropsychological testing conducted to determine whether there has been a worsening in his neuropsychological impairment identified in 1997. If a worsening has occurred, the examiner should provide an opinion whether it is at least as likely as not (i.e., at least a 50 percent probability) that said worsening is proximately due to or the result of the Veteran's service-connected PTSD with adjustment disorder and depressed mood. The examiner should also, if possible, provide an opinion as to when any identified worsening in the Veteran's neuropsychological impairment had its onset and the course of its progression (e.g., has it progressed over time or has it remained stable). In answering these questions, the examiner should address the May 2006 VA psychiatric/psychosocial assessment. The claims file must be provided to the examiner for review in conjunction with the examination. The examiner should indicate in the report that the claims file was reviewed. Furthermore, the examiner must provide a detailed explanation of the reasons for all conclusions and opinions rendered. If an opinion cannot be rendered without resorting to mere speculation, the examiner must so state and explain why such an opinion cannot be rendered at this time. 3. Thereafter, readjudicate the claim. In readjudicating the claim, the AMC should consider whether any evidence obtained since the December 2011 Board remand not only demonstrates a current worsening in the severity of the Veteran's service-connected psychiatric disorder, but also whether such evidence establishes that a disability rating in excess of 30 percent is warranted prior to January 17, 2012. If such action does not resolve the claim, an SSOC should be issued to the Veteran and his representative. An appropriate period of time should be allowed for response. Thereafter, this claim should be returned to this Board for further appellate review, if in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) 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. 2012). _________________________________________________ REBECCA N. POULSON 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).