Citation Nr: 1237650 Decision Date: 11/02/12 Archive Date: 11/09/12 DOCKET NO. 08-31 569 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for gastrointestinal reflux disease (GERD), to include as secondary to the service-connected PTSD. 2. Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD). 3. Entitlement to a total rating based on individual employability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Joseph R. Moore, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active service from June 1966 to June 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2008 and June 2008 rating actions of the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine and Detroit, Michigan, respectively. [Due to the location of the Veteran's residence, jurisdiction of his appeal remains with the RO in Detroit, Michigan.] In April 2010, the Veteran testified at a hearing before a decision review officer (DRO). A transcript of the hearing has been associated with the claims file. In October 2011, the Board denied a rating in excess of 30 for PTSD. The Veteran appealed that denial to the United States Court of Appeals for Veterans Claims (Court). In May 2012, the Court granted a Joint Motion for Remand (JMR) by the Veteran and VA General Counsel, which was incorporated by reference, to vacate the Board's decision as to that issue and to remand the claim for readjudication in accordance with the JMR. [Also in October 2011, the Board remanded the claim for service connection for GERD for further development.] For the reasons set forth below, all issues on appeal are REMANDED to the RO. VA will notify the Veteran if further action is required. REMAND Regrettably, a remand is necessary for further evidentiary development. The Veteran was afforded a VA psychiatric examination in June 2010, and the severity of his service-connected PTSD may have worsened since that evaluation. At the June 2010 examination, the Veteran reported to the examiner that he kept in touch with his step-children on a regular basis. However, an August 2011 Vet Center letter notes that the Veteran had no relationship with his two adult children. Additionally, a private psychiatric evaluation dated in October 2011 has been submitted. The symptomatology and severity of the Veteran's PTSD described in this evaluation report differs significantly from what VA examinations and treatment records have shown. For example, the Global Assessment of Functioning (GAF) scores assigned to the Veteran in January 2008 and June 2010 were 55 and 65, respectively. However, the private October 2011 examiner indicated that the Veteran's GAF score was currently only 35 and was between 35 and 40 during the last year. The October 2011 physician also indicated that the June 2010 examiner's opinion that the Veteran's symptoms had not increased in severity since 2008 was not consistent with his reading of the medical record or interview of the Veteran. Therefore, in light of the fact that the most recent psychiatric examination is over two years old, and, because the private October 2011 examination describes a more severe PTSD impairment than that which is shown in the VA examinations and treatment records, and, because the August 2011 Vet Center letter appears to indicate a worsening of his PTSD, the Board finds that the record, as it currently stands, does not adequately reveal the present state of the Veteran's PTSD, especially if this disability has indeed worsened. The Board finds, therefore, that a remand of the Veteran's increased rating claim is necessary to secure an examination to ascertain the current level of this disability. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991) (where the record does not adequately reveal the current state of the claimant's disability, a VA examination must be conducted). The most recent counseling record from the Vet Center that is included in the claims file is dated in June 2010. However, a May 2012 Vet Center letter reveals that the Veteran's most recent individual counseling visit was during that month. All Vet Center records not of record should be obtained. 38 C.F.R. § 3.159(c). As for the claim for service connection for GERD, to include as secondary to the service-connected PTSD, the Board remanded this issue in October 2011 to obtain an addendum opinion from the June 2010 VA esophagus and hiatal hernia examiner. Review of the record indicates that no such addendum opinion has yet been obtained. It appears that, in light of the Veteran appealing the claim for an increased rating for his PTSD to the Court, the RO returned the claims file to the Board before the agency of original jurisdiction (AOJ) had the opportunity to complete the development requested by the Board for the issue of service connection for GERD. Therefore, the Board is remanding the issue of entitlement to service connection for GERD, to include as secondary to the service-connected PTSD, so that the RO has the opportunity to complete the development set forth in the Board's October 2011 Remand. Additionally, the Veteran's representative contends that the Veteran is unemployable as a result of his service-connected PTSD. See, e.g., August 2012 statement. Clearly, based on this evidentiary posture, a claim for a TDIU has been raised. Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Prior to adjudication of the TDIU issue, however, the Board finds that further evidentiary development is necessary-to include obtaining a pertinent medical opinion as to the effect of the Veteran's service-connected PTSD on his employability. [In this regard, the Board points out that, in addition to the service-connected PTSD (currently 30%), service connection is also in effect for diabetes mellitus, type II (10%). However, the Veteran has not asserted that his diabetes mellitus, type II affects his employability.] Furthermore, the most recent VA treatment records from the VA Medical Center (VAMC) in Detroit, Michigan are dated in May 2012. On remand, records of any ongoing VA psychiatric and gastrointestinal treatment that the Veteran may be receiving should be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). Accordingly, the case is REMANDED for the following action: 1. Issue to the Veteran a Veterans Claims Assistance Act of 2000 notice letter for the claim for a TDIU. 2. After obtaining the appropriate release of information forms where necessary, procure records of psychiatric and gastrointestinal treatment that the Veteran has recently received. The Board is particularly interested in records of such treatment that the Veteran may have received from the VAMC in Detroit, Michigan since May 2012 and from the Vet Center also in Detroit, Michigan since June 2010. If any such records identified by the Veteran are not available, he should be so informed, and notations as to the unavailability of such records and as to the attempts made to obtain the documents should be made in the claims file. All such available reports should be associated with the claims folder. 3. Then, accord the Veteran an appropriate VA examination to determine the current level of severity of his PTSD. His claims file, including a copy of this Remand, must be made available to the examiner for review in connection with the examination. A notation to the effect that this review has taken place should be made in the evaluation report. All pertinent psychiatric symptoms found should be noted in the examination report. The examiner should comment on the extent to which the Veteran's PTSD impairs his occupational and social functioning. In so doing, the examiner should assign a GAF score and provide an explanation of the score assigned. The examiner should also opine as to whether the Veteran's service-connected PTSD precludes him from engaging in substantially gainful employment. A complete rationale should be given for all opinions and conclusions expressed. If the examiner must resort to speculation to render the requested opinion, he/she must state what reasons, with specificity, that this question is outside the scope of a medical professional conversant in VA practices. 4. Obtain an addendum opinion from the June 2010 VA esophagus and hiatal hernia examiner (or, if that examiner is unavailable, a medical professional with appropriate expertise). The claims file, including a copy of this Remand, must be made available to the examiner for review in connection with the opinion. A notation to the effect that this review has taken place should be made in the evaluation report. The examiner should review the record and offer an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of approximately 50 percent), or less likely than not (i.e., probability less than 50 percent) that the Veteran's GERD had its clinical onset in service or is otherwise related to active duty (including the in-service digestive complaints). If the Veteran's GERD is found not to have originated in, or to be otherwise related to, his active duty, the examiner should then express an opinion as to whether it is at least as likely as not, i.e., a 50 percent probability or greater, that such disability was caused or aggravated (permanently worsened beyond normal progression) by the service-connected PTSD. [If the Veteran's GERD is found to have been aggravated by his service-connected PTSD, the examiner should quantify the approximate degree of aggravation.] A complete rationale should be given for all opinions and conclusions expressed. If the examiner must resort to speculation to render the requested opinion, he/she must state what reasons, with specificity, that this question is outside the scope of a medical professional conversant in VA practices. 5. Ensure that the examination reports comply with (answer the questions posed in) this Remand. If any report is insufficient, it should be returned to the examiner for corrective action, as appropriate. 6. Readjudicate the issues on appeal. If any benefit remains denied, issue to the Veteran and his attorney a supplemental statement of the case and give them an opportunity to respond. The case should then be returned to the Board for further consideration. No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claims. 38 C.F.R. § 3.655 (2011). He has the right to submit additional evidence and argument on the matter that 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 or the Court for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). _________________________________________________ THERESA M. CATINO 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 Court. 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) (2011).