Citation Nr: 1300673 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 08-02 713 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to a disability rating in excess of 50 percent for the service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Robert Chisholm, Attorney ATTORNEY FOR THE BOARD L.B. Cryan, Counsel INTRODUCTION The Veteran served on active duty from June 1968 to June 1970. This case is before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In that decision, the RO confirmed and continued a 30 percent rating assigned for the service-connected PTSD. During the course of the appeal, the RO granted an increased disability rating of 50 percent for PTSD, effective July 3, 2006. In an August 2011 decision, the Board found that the service-connected PTSD was 50 percent disabling during the entire period covered by the claim. In that same decision, the Board also found that the criteria for the assignment of a disability rating in excess of 50 percent for the service-connected PTSD were not met at any time during the period covered by the claim. Finally, pursuant to the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Board determined that the issue of entitlement to a total disability rating for individual unemployability due to service-connected disabilities (TDIU) was raised by the record. That issue was remanded to the RO for development of the record and initial adjudication of the claim. As of this date, the issue of entitlement to a TDIU remains pending at the RO. As such, that issue is deferred pending RO action and need not be further discussed here. The Veteran appealed the Board's August 2011 decision to the Court of Appeals for Veterans Claims (CAVC or Court). While his claim was pending at the Court, the Veteran's representative and the VA Office of General Counsel filed a Joint Motion in June 2012 requesting that the Court vacate the Board's decision, but only as to that portion of the decision that denied a disability rating in excess of 50 percent for the service-connected PTSD; and, remand the case to the Board for further development and readjudication. In a June 2012 Order, the Court granted the Joint Motion. The case was returned to the Board. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The Veteran maintains that entitlement to a disability rating in excess of 50 percent is warranted for his service-connected PTSD. Additional evidence has been added to the claims file, which includes VA treatment records dated from January 2009 to September 2012. Also, the Veteran submitted a November 2012 comprehensive report from a private vocational consultant regarding the Veteran's employability status and the severity of his PTSD. Although the Veteran has waived Agency of Original Jurisdiction (AOJ) review of this evidence, a remand is nevertheless necessary. A review of the record shows that the Veteran has attended weekly PTSD counseling throughout the appeal period. These records tend to show that the Veteran reports symptoms of frequent nightmares, depression, panic attacks, isolation, anxiety, forgetfulness, flashbacks of Vietnam, decreased energy, irritability, road rage, and other symptoms associated with PTSD; the evidence is relatively inconsistent as to the level of severity of the Veteran's symptoms and manifestations. Further, the November 2012 vocational consultant's report provides a very dismal assessment of the Veteran's overall disability picture. A review of the vocational consultant's credentials, however, fails to disclose that he has the requisite medical training that would qualify him to provide medical opinions. VA adjudicators may consider only independent medical evidence to support their findings. If the medical evidence of record is insufficient, VA is always free to supplement the record by seeking an advisory opinion, or ordering a medical examination to support its ultimate conclusions. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). It is significant to note that the Veteran has not undergone a VA examination to assess the severity of the service-connected PTSD since 2006, nearly seven years ago. Given the foregoing discrepencies and the potential evidence of a worsening of the Veteran's psychiatric symptomatology, the Veteran must be afforded a VA examination to assess the current nature, extent and severity of the service-connected PTSD. In this regard, the examiner is also asked to review the entire record and attempt to reconcile the November 2012 private vocational counselor's findings with the other evidence of record, including, but not limited to the Veteran's self-reported history, and the findings during counseling sessions and VA mental health assessments. Since the claims file is being returned it should be updated to include any recent VA treatment records that are not of record. VA records dated from January 16, 2009 through September 11, 2012 have already been associated with the claims file. Prior to that time period, VA records dated up to February 2008, but no later, appear to be associated with the claims file. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file all VA records not current of record, including records from February 2008 up to January 16, 2009, and VA records generated after September 11, 2012. 2. The Veteran should be scheduled for a VA examination by a psychiatrist to ascertain the current severity of his service-connected PTSD. The claims files must be available for review and that review should be indicated in the examination report. The examiner should describe the nature and severity of all symptoms of the Veteran's PTSD, and how those symptoms affect the Veteran's occupational and social functioning, as well as their effect on his overall disability picture. A Global Assessment of Functioning (GAF) score should be provided, with an explanation of what the GAF score represents. The examiner should attempt to reconcile the findings provided by the November 2012 vocational counselor with regard to the severity of the Veteran's PTSD, with the other evidence of record, including the Veteran's reported history, the VA outpatient reports, and mental health assessments. A complete rationale for all opinions is required. 3. Following completion of the development requested, readjudicate the Veteran's claim, as well as the inextricably intertwined claim of entitlement to a TDIU. If any benefit sought on appeal remain denied, the Veteran and his attorney should be provided with a supplemental statement of the case (SSOC), and an appropriate period of time allowed for response before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ MICHAEL A. PAPPAS 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).