Citation Nr: 1300083 Decision Date: 01/02/13 Archive Date: 01/11/13 DOCKET NO. 10-36 449 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an increased initial rating for posttraumatic stress disorder (PTSD), currently rated as 50 percent disabling. ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The Veteran had active duty service from June 1982, to July 1982, and October 2003, to February 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA) located in Winston-Salem, North Carolina. This rating decision assigned an initial 50 percent rating for PTSD following the grant of service connection by the Board in a September 2009 decision. The Veteran submitted a Notice of Disagreement in October 2009. A Statement of the Case (SOC) was provided to the Veteran on July 2010. In an October 2010 VA Form 9, the Veteran perfected an appeal with regard to the issue currently before the Board. The Board remanded the Veteran's claim for further development on July 2011. The RO issued a Supplemental Statement of the Case (SSOC) on March 2012 and, the requested development having been completed, this issue is again before the Board. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a total rating based on individual unemployability (TDIU) claim is part of an increased rating claim when such claim is raised by the record. As of this writing, this issue has not been raised by the record and will not be addressed in this decision. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. 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 Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim. Remand is required to obtain a VA examination addendum opinion in accordance with the July 2011 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order). Further, as the Veteran has indicated that he is receiving continuous treatment for his PTSD from a private treatment provider, an attempt to obtain any current records should also be made. First, remand is required to comply with the previous Board remand. See Stegall, 11 Vet. App. at 271. In July 2011, the Board remanded the issue of entitlement to an increased initial rating for PTSD, currently rated as 50 percent disabling. The Board requested that the RO attempt to obtain private treatment records related to the Veteran's PTSD. The Board further requested that, after allowing the Veteran time to respond and obtaining any newly identified evidence, the RO should then schedule the Veteran for a VA PTSD examination. The claims file reflects that the RO sent the Veteran a letter dated October 3, 2011, in which he was requested to complete a VA Form 4142, Authorization and Consent to Release Information to the VA. The record shows that the Veteran completed this form on October 19, 2011. However, an attempt to obtain the Veteran's records was not made until February 2012, after the Veteran had been administered a VA PTSD examination in December 2011. The RO did not proceed to have the VA examiner review the newly obtained private treatment records and issued a SSOC, denying the Veteran's claim. As the RO did not fully comply with the July 2011 remand instructions, the VA examiner was not able to review evidence covering the Veteran's PTSD treatment for the time period at issue. Because it does not appear that the VA examiner has properly considered all of the evidence as requested by the July 2011 Remand instructions, an additional addendum opinion is necessary. Accordingly, the VA examiner must address the Veteran's updated private treatment records in his findings in a new VA examination. Second, VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. §§ 3.159(c) (2012). The duty to assist includes obtaining records in the custody of a Federal department or agency, including VA medical records and relevant SSA records, and making reasonable efforts to obtain private medical records. 38 C.F.R. § 3.159(c)(1), (2); Golz v. Shinseki, 590 F.3d 1317, 1321-23 (Fed. Cir. 2010). Here, the Veteran has submitted private treatment records from the psychiatrist who has treated him since 2005, after leaving service. The treatment notes of record appear to indicate continuous and regular periodic treatment. Thus, it is probable that the Veteran has continued to be treated by this psychiatrist since the last obtained January 2012 private treatment records. Accordingly, an attempt must be made to obtain any current treatment records since January 2012. Any newly obtained treatment records must be made available to the VA examiner prior to the formulation of any medical opinion. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he identify the name, date, and location of any PTSD or psychological treatment since January 2012. Provide an authorization form for the release of such records and inform him that he may submit any records in his possession. 2. After allowing the Veteran time to respond and obtaining any newly identified evidence, arrange for the Veteran's claims file to be reviewed, including this remand, by the December 2011 VA examiner, (or a suitable substitute if that examiner is unavailable). The examiner should prepare an addendum to the December 2011 examination report and opine as to the severity of the Veteran's PTSD. The examiner is asked to assess the current overall impairment of the Veteran's reported psychological symptoms, to include PTSD, on social and occupational functioning. He or she is asked to describe common social and occupational activities that the Veteran's psychological symptoms render him incapable of performing (i.e. personal errands; spending leisure time with friends or family; completing occupational tasks; sustaining work relationships with supervisors, co-workers, and customers). If the examiner believes that the Veteran is over reporting his psychological symptoms, he or she must so state and provide a thorough explanation for his or her opinion. A complete rationale should be given for all opinions and conclusions. In this regard, a discussion of the facts and medical principles involved would be of consideration assistance to the Board. 3. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AMC must implement corrective procedures. Stegall, 11 Vet. App. at 271. 4. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a SSOC must be provided to the Veteran. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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). 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). _________________________________________________ DEBORAH W. SINGLETON 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).