Citation Nr: 1237478 Decision Date: 11/01/12 Archive Date: 11/09/12 DOCKET NO. 07-06 334 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to an initial disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J.M. Rutkin, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1989 to August 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which granted service connection for PTSD and assigned it an evaluation of 20 percent. During the pendency of the appeal, an increased evaluation of 70 percent for PTSD was granted in a March 2009 supplemental statement of the case (SSOC). This increase is effective October 6, 2004, the date of the Veteran's claim for service connection. The Board notes that, with respect to increased ratings, the United States Court of Appeals for Veterans Claims (Court) has held that on a claim for an original or increased rating, the appellant will generally be presumed to be seeking the maximum benefit allowed by law or regulation, and it follows that such a claim remains in controversy where less than the maximum benefit is allowed. AB v. Brown, 6 Vet. App. 35, 38 (1993). The Court further held that, where a claimant has filed a notice of disagreement as to a RO decision assigning a particular rating, a subsequent RO decision awarding a higher rating, but less than the maximum available benefit, does not abrogate the appeal. Id. Thus, the evaluation of the Veteran's PTSD remains in appellate status. The Veteran testified at a March 2009 hearing before a Decision Review Officer (DRO) at the Chicago RO, and testified at a September 2009 Board hearing before the undersigned at the Chicago RO. Transcripts of both hearings have been associated with the claims file. The Board remanded this claim in March 2010 and January 2011 for further development. It now returns for appellate review. 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 While the Board regrets the further delay, it must remand this claim again to ensure substantial compliance with its prior remand directives and to ensure that the claim is afforded every reasonable consideration consistent with the evidence of record. The Board remanded this claim in January 2011 to obtain a VA examination and opinion assessing the impact of the Veteran's PTSD on his occupational and social functioning. The Board instructed that the examiner's finding should be based not only on how the Veteran's symptoms presented on the day of the examination, but also on the clinical history reflected in the VA treatment records. In this regard, the Board noted that the Veteran's symptoms seemed to fluctuate in severity. A VA examination was accordingly provided in February 2011. In the examination report, the examiner stated that the Veteran's symptoms did not "meet the . . . criteria for PTSD today," and did not render an opinion as to whether the Veteran's PTSD symptoms resulted in total occupational and social impairment. While the examiner adequately explained the rationale for finding that the Veteran did not exhibit symptoms consistent with PTSD at the examination, the examiner did not address whether the Veteran's overall clinical history as shown in the VA treatment records and past examination reports supported a finding that he had total occupational and social impairment due to PTSD, irrespective of whether the Veteran's symptoms met the criteria for PTSD on the day of the examination. See 38 C.F.R. § 4.1 (2012) (providing that it is essential in a VA examination and in the rating decision that the disability be viewed in relation to its history); see also 38 C.F.R. § 4.126 (2012) (providing that VA must take into account all of the Veteran's symptoms and resulting functional impairment as shown by the evidence of record in assigning the appropriate rating, and will not rely solely on the examiner's assessment of the level of disability at the moment of examination). Importantly, this appeal stems from an October 2004 claim for service connection, and there may be periods of time over the eight years that this claim has been pending when the Veteran's PTSD symptoms were severe enough to warrant a total rating. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (holding that "staged ratings" may be warranted for varying levels of disability over the life of the claim). In Stegall v. West, 11 Vet. App. 268, 271 (1998), the Court held that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand. See also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As such, on remand, the agency of original jurisdiction (AOJ) should obtain an opinion by a VA psychiatrist or psychologist as to whether the Veteran's PTSD symptoms have caused total occupational and social impairment during the pendency of this claim in light of his medical history. In this regard, the Veteran has also been diagnosed with schizoaffective disorder, for which service connection has not been established. Many of his psychiatric symptoms have been attributed to this disorder in the VA treatment records. Thus, to the extent possible, the examiner should specify in what ways the Veteran's PTSD symptoms-as they have manifested since October 2004-differ from his symptoms of nonservice-connected schizoaffective disorder or bipolar disorder (as diagnosed in more recent VA treatment records and in the February 2011 VA examination report) in terms of the impact on his occupational and social functioning. If the examiner is unable to make such a distinction, the examiner should so state and provide an explanation. The AOJ should also take this opportunity to obtain recent outstanding VA treatment records dating from January 2012 to the present. Accordingly, the case is REMANDED for the following actions: 1. The Veteran's VA treatment records dating from January 2012 to the present should be obtained and associated with the claims file. 2. A VA opinion should be provided by a VA psychiatrist or psychologist as to whether the Veteran's PTSD, as it has manifested since 2004, has resulted in total occupational and social impairment during the pendency of this claim, in light of the available VA treatment records and examination reports. The Veteran need not be scheduled for another examination unless deemed necessary by the medical professional rendering an opinion on this claim. The examiner must indicate in the opinion that the evidence in the claims file has been reviewed. After reviewing the claims file and the Veteran's medical history as reflected therein, the examiner should state whether the Veteran has had both total occupational and total social impairment as a result of PTSD during the pendency of this claim, i.e. since October 2004. The opinion must be supported by a thorough explanation. To the extent possible, the examiner should specify in what ways the Veteran's PTSD symptoms differ from his symptoms of schizoaffective disorder or bipolar in terms of their impact on his occupational and social functioning. If the examiner is unable to make such a distinction, the examiner should so state and provide an explanation. 2. After the above development is completed, and any other development that may be warranted based on any additional information or evidence received, the AOJ should readjudicate the claim on the merits. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran 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). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655 (2012). 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. 2012). _________________________________________________ K. PARAKKAL 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) (2012).