Citation Nr: 1301244 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 09-31 574 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and fiancée ATTORNEY FOR THE BOARD Timothy D. Rudy, Counsel INTRODUCTION The Veteran served on active duty from August 1967 to September 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in December 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In July 2011, the Veteran and his then fiancée testified before the undersigned during a Board hearing held at the RO. A transcript of the hearing has been associated with the claims file. The Board remanded this matter for additional development in an October 2011 remand. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, D.C. REMAND Unfortunately, a remand of the Veteran's claims is required. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. §§ 5107(a), 5103A (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(c), (d) (2012). The February 2012 VA examiner did not complete the remand requests from the Board's October 2011 decision. The Board requested that the Veteran be provided a new VA examination to determine the severity of his PTSD. The examiner was requested to provide a complete rationale for the conclusions he reached. The examiner also was to discuss the findings in relation to pertinent evidence, including the November 2008 VA examination and lay and clinical evidence which suggested that the Veteran's overall mental health symptoms had worsened. All signs and symptoms of any psychiatric disability were to be reported in detail. The same VA psychologist who conducted the November 2008 VA mental examination also conducted the February 2012 VA mental examination. In February 2012, while the examiner indicated a review the claims file, there is no indication from the examination report that the examiner reviewed the transcript of the Veteran's July 2011 Board hearing. The report of the February 2012 VA examination does not discuss any of the contentions of the Veteran and his then fiancée as to the Veteran recently experiencing more severe concentration deficits, fits of temper, or that he had lost interest in many activities. The record presently before the Board shows a wide divergence of opinion between the VA examiner and the Veteran and his fiancée as to the nature and extent of memory, concentration, and anxiety symptoms related to the Veteran's PTSD. In addition, the examiner listed some psychiatric symptoms in one paragraph of the report entitled Mental Status, but left blank the entire section of the VA mental examination report entitled Symptoms. Moreover, while the examiner provided a Global Assessment of Functioning (GAF) score of 65 in the November 2008 examination, the examiner assigned a lower GAF score between 55 to 60 in February 2012. A score of 65 shows some mild symptoms while a score between 51 and 60 shows moderate symptoms. The examiner did not explain why the GAF score lowered from 2008 to 2012 or an apparent disagreement with the clinical finding from a test conducted, which suggested the Veteran had moderately severe PTSD. In view of the above, the Board cannot find that the February 2012 VA examination for PTSD is adequate for rating purposes. 38 C.F.R. § 4.2 (if findings of examination report do not contain sufficient detail, it is incumbent to return the report). The Board finds that it provided insufficient detail with which to determine whether the Veteran's current 30 percent disability rating should be continued or whether an increase to 50 percent is in order under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130 (2012). The Board may not rely upon its own unsubstantiated medical opinion. Allday v. Brown, 7 Vet. App. 517 (1995); Godfrey v. Brown, 7 Vet. App. 398 (1995); Traut v. Brown, 6 Vet. App. 495 (1994); Colvin v. Derwinski, 1 Vet. App. 171 (1991). Therefore, without further clarification regarding the Veteran's symptomatology, the Board is without medical expertise to ascertain whether the Veteran's PTSD symptoms are severe enough to justify an increase in the disability rating assigned for his service-connected PTSD. Because of the lack of necessary evidentiary development, the Board finds that there has not been substantial compliance with its October 2011 remand. Compliance by the Board or the RO with remand directives is neither optional nor discretionary. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, on remand, a VA mental disorders examiner should follow the October 2011 remand directives related to the Veteran's request for a higher rating for PTSD. Concerning the Veteran's claim for a TDIU, the Board notes that the TDIU claim is inextricably intertwined with the increased rating claim. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are inextricably intertwined when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). The March 2012 supplemental statement of the case reviewed the Veteran's VA treatment records as of February 2012. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462 (1998); Bell v. Derwinski, 2 Vet. App. 611 (1992). Therefore, on remand all relevant VA medical records dated since February 2012 should be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims folder all medical records from the VA Gulf Coast Veterans Health Care System in Mississippi and the Panama City, Florida, VA clinic, dated since February 2012. 2. After any additional evidence has been associated with the claims file, schedule the Veteran for a VA mental disorders examination, by an examiner other than the VA psychologist who conducted the November 2008 and February 2012 examinations, to ascertain the severity of his service-connected PTSD. The claims folder should be reviewed by the examiner, and the examination report should note that review. The examiner should provide a complete rationale for all conclusions reached and should discuss those findings in relation to the pertinent evidence of record, particularly the Veteran's previous VA examinations conducted in November 2008 and February 2012 and lay evidence from his July 2011 Board hearing suggesting that his overall mental health symptoms had worsened. Additionally, the examiner should provide a full multi-axial diagnosis pursuant to DSM-IV, to include a GAF score. All signs and symptoms of any psychiatric disability should be reported in detail. The examiner also should describe the overall impact of the Veteran's psychiatric problems on his occupational and social functioning. 3. Then, readjudicate the claims. If any decision remains adverse to the Veteran, issue a supplemental statement of the case. Allow the appropriate time for response. Then, return the case to the Board. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ Harvey P. Roberts 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).