Citation Nr: 1237491 Decision Date: 11/01/12 Archive Date: 11/09/12 DOCKET NO. 10-08 323A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and adjustment disorder with anxiety. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. P. Simpson, Counsel INTRODUCTION The Veteran served on active duty from August 1950 to April 1952. This case is before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the two issues on appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Board has reviewed the Veteran's claims file and the record maintained in the Virtual VA paperless claims processing system. 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 a February 2011 decision, the Board denied the two issues on appeal. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2012 Memorandum Decision, the Court vacated the February 2011 decision for additional development and adjudicative action, which additional development. Specifically, the Court found that the November 2009 VA psychiatric evaluation was inadequate, which inadequacy had been alleged by the Veteran and conceded by the Secretary of VA. See Memorandum Decision on page 2. Thus, the Board will remand that issue to obtain a new psychiatric evaluation. Additionally, the Board finds that a VA examination to determine whether the Veteran's service-connected disabilities prevent the Veteran from obtaining and retaining substantial gainful employment is warranted. The Veteran has indicated having received treatment from VA only. The most recent VA treatment records are from May 2007. Thus, treatment records from that time should be associated with the claims file. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The AMC should contact the Veteran and ask that he either provide names and addresses of non-VA medical care providers who have relevant records that have not already been associated with the claims folder or that he submit the outstanding medical records directly to VA pertaining to treatment for a psychiatric disorder. Once the Veteran provides VA with permission, the RO should attempt to obtain copies of these medical records. 2. Obtain VA medical records pertaining to the Veteran that date from May 2007. 3. Then, schedule the Veteran for a VA psychiatric examination. The examiner must be provided with the claims file and must note that review in the report. The Board notes that the November 2009 examiner was not provided with the claims file, which made the examination inadequate. The report of examination should include a thorough rationale for all opinions expressed. Any necessary psychiatric testing should be accomplished. The examiner should provide the following information: (i) Provide a full multiaxial diagnosis pursuant to DSM-IV. Specifically state whether each criterion for a diagnosis of PTSD is met. (ii) If a diagnosis of PTSD is appropriate, comment upon the link between the current symptomatology and any corroborated in-service stressor reported by the Veteran, and provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) related to the Veteran's active service. As the Veteran reports that a stressor includes his fear of hostile military or terrorist activity, the examiner should opine as to whether this is adequate to support a diagnosis of PTSD, providing a discussion of how such diagnosis confirms with the DSM-IV criteria. It is noted that "[F]ear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.104(f), as amended by 75 Fed. Reg. 41092 (July 15, 2010). (iii) With respect to any other psychiatric disorder(s) found on examination and noted in the claims file, the examiner should specifically state for each diagnosis, including adjustment disorder with anxiety, whether it at least as likely as not (50 percent or greater probability) began in or is related to the Veteran's active service. (iv) The examiner should comment on the effect the psychiatric disorder(s) has on the Veteran's ability to obtain and maintain gainful employment. 4. After the psychiatric examination report has been completed, it should be reviewed to ensure that it is in complete compliance with the directives of this remand. The examination report should be returned to the examiner if deficient in any manner. 5. Then, the AMC should then readjudicate the issue of entitlement to service connection for an acquired psychiatric disorder, to include PTSD and adjustment disorder with anxiety. 6. After the above development is completed, schedule the Veteran for a VA examination to provide an opinion regarding the occupational impairment caused by the service-connected disabilities. The examiner must be provided with the claims file and must note that review in the report. The examiner should be informed of the specific disabilities for which the Veteran is service connected (which may or may not include a psychiatric disorder). The examiner is asked to answer whether it is at least as likely as not (50 percent probability or greater) that the Veteran is unable to secure and follow substantially gainful employment as a result of the service-connected disabilities, taking into account his education level (completion of high school) and work background, but not his age or other non-service connected disabilities. If the Veteran's service-connected disabilities do not singly or cumulatively render him unemployable, the examiner should report the type or types of employment in which the Veteran would be capable of engaging with his current service-connected disabilities, given his skill set and educational background. The examiner must provide a complete rationale for any stated opinion. 7. After the examination report has been completed, it should be reviewed to ensure that it is in complete compliance with the directives of this remand. The examination report should be returned to the examiner if deficient in any manner. 8. Thereafter, ensure that the development above has been completed in accordance with the remand instructions and undertake any other development action that is deemed warranted. Then, re-adjudicate the issues of entitlement to service connection for an acquired psychiatric disorder, to include PTSD and adjustment disorder with anxiety. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the 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 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). __________________________________________ 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) (2012).