Citation Nr: 1301360 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 10-39 918 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to a disability rating higher than 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Cheryl E. Handy, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from June 1964 to June 1968, including service in the Republic of Vietnam. He was awarded the Purple Heart medal among other decorations. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in April 2009 of the Department of Veterans Affairs (VA) Regional Office (RO) in New York City, New York, which continued a 30 percent disability rating for PTSD. In May 2012, the Veteran appeared at a hearing before the undersigned at the RO (Travel Board). A transcript of the hearing is in the claims file. The record shows that the Veteran has filed a claim of service connection for idiopathic thrombocytosis which has not yet been adjudicated by the RO. Therefore, the Board does not have jurisdiction over it, and it is referred to the RO for appropriate action. 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 At the May 2012 hearing, the Veteran testified that he has continued to receive treatment for his PTSD symptoms at the VA Outpatient Clinic in Northport, New York and the Vet Center in Babylon, New York, including treatment as recently as April 2012. The most recent VA Outpatient records contained in the claims file are from April 2010, and there are no records of psychiatric treatment since January 2010. VA treatment records are constructively of record before VA decision makers, and if relevant to the claim, must be obtained. See Bell v. Derwinski, 2 Vet. App. 611 (1992). The claims file does not include any Vet Center treatment records during the appeals period and, although such treatment is mentioned in VA Outpatient records, it does not appear that the RO ever requested any records from the Vet Center. VA has a duty to make as many requests as are necessary to obtain relevant VA records, which include Vet Center treatment records, and to end its efforts only if it concludes that the records sought do not exist or that further efforts to obtain those records would be futile. See 38 C.F.R. § 3.159 (c)(2) (2012). The Veteran also stated during the hearing that his PTSD symptoms had worsened since his last VA examination in March 2009. A Veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). In addition, a Veteran is competent to provide an opinion that his disability has worsened. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). Therefore, a new VA examination must be provided to determine the current severity of the Veteran's service-connected PTSD, particularly in regards to how it impacts his social and occupational functioning. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain records of the Veteran's treatment for PTSD since January 2010 at the VA Outpatient Clinic in Northport, New York, and all records of such treatment at the Vet Center in Babylon, New York. Efforts to obtain these records must continue until they are obtained, unless it is reasonably certain that they do not exist or that further efforts would be futile. 2. Provide the Veteran a VA examination to evaluate the current severity of PTSD. The claims folder must be made available to the examiner and review of the record must be noted in the examination report or in an addendum. The examiner should provide an opinion as to the severity of the service-connected symptomatology and its impact on occupational and social functioning, apart from that attributable to any non-service connected disabilities. If it is not possible to distinguish the service connected from any non-service connected symptomatology which may be present, the examiner should so state. The rationale for all opinions must be provided. 3. The RO/AMC should review the examination report to ensure that it contains the opinions and rationales requested in this remand. 4. On completion of the foregoing, the claim should be adjudicated. If the decision remains adverse to the Veteran, then provide him and his representative a supplemental statement of the case and 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). 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). _________________________________________________ Mark D. Hindin 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).