Citation Nr: 1301919 Decision Date: 01/17/13 Archive Date: 01/23/13 DOCKET NO. 10-07 312 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE 1. Entitlement to an initial evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Ganz, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1967 to November 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from July 2009 and June 2010 rating decisions of the Muskogee, Oklahoma, Department of Veterans Affairs (VA) Regional Office (RO). The former, in pertinent part, granted service connection for PTSD, with a 30 percent rating, effective December 10, 2008, and the latter, in pertinent part, denied entitlement to a TDIU. Subsequently, in a February 2010 Decision Review Officer (DRO) decision, the RO increased the Veteran's evaluation for PTSD to 50 percent, effective December 10, 2008. In AB v. Brown, 6 Vet. App. 35 (1993), the United States Court of Appeals for Veterans Claims (Court) held that, on a claim for an original or increased rating, the veteran will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy, even if partially granted, where less than the maximum benefit available is awarded. Thus, his appeal of entitlement to an initial rating in excess of 50 percent for PTSD continues. In August 2012, the Veteran testified at a Board video-conference hearing held before the undersigned Veterans Law Judge at the local RO. A copy of the transcript is of record 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 The record as it stands is currently inadequate for the purpose of rendering a fully informed decision as to the claims on appeal. Where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order for VA to fulfill its statutory duty to assist the veteran to develop the facts pertinent to the claim. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). At his August 2012 Board hearing, the Veteran testified that he was being treated by a private psychologist for his PTSD and was going to submit these records to VA. He also testified that he had panic attacks, unprovoked irritability, including fighting or fleeing, and suicidal ideation. The Veteran testified further that he separated from his wife in 2011, and attributed the demise of his marriage to the severity of his PTSD. The Veteran's PTSD was last evaluated by VA during a May 2011 examination. The Veteran's subsequent August 2012 hearing testimony that he receives ongoing treatment with a private psychologist for his PTSD, has suicidal ideation, and that his marriage ended due to his PTSD indicates that his PTSD may have worsened since his last VA examination. Additionally, an August 2011 private opinion from the Veteran's health care provider, who is an Advanced Registered Nurse Practitioner (ARNP), noted that the Veteran was mentally and physically unable to work due to PTSD and a number of other physical disabilities. This opinion also indicates that the Veteran's disability may have worsened since his last VA examination in May 2011. Where the record does not adequately reveal the current state of the disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination. See Green (Victor) v. Derwinski, 1 Vet. App. 121, 124 (1991). Thus, the Veteran's claim must be remanded so that he can be provided with a new VA examination to assess the current severity of his PTSD. 38 C.F.R. § 3.159(c)(4). Additionally, regarding his claim of entitlement to a TDIU, given that the Veteran's PTSD may have worsened since his last VA examination and that the August 2011 private ARNP's opinion indicates that his PTSD renders him unemployable, an examination regarding the impact of all of his service connected disabilities (PTSD, bilateral hearing loss, and tinnitus) on his employability should be conducted. 38 C.F.R. § 3.159(c). Finally, VA is required to assist the Veteran in obtaining evidence to support his claims. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). During the hearing before the undersigned the Veteran reported that he receives ongoing treatment with a private psychologist for his PTSD and would submit those records. Although he has not, VA is still on notice that there are outstanding private treatment records. Thus, on remand VA should attempt to obtain these records and any outstanding VA treatment records. See Id. Accordingly, the case is REMANDED for the following actions: 1. The RO should contact the Veteran and ask him to identify the name and address of the private psychologist who he sees for treatment for his PTSD. After obtaining any necessary release forms, the RO should attempt to obtain any identified private treatment records. The RO should also obtain any outstanding VA treatment records from any and all VA medical facilities. All efforts to obtain such records should be fully documented, and the facility must provide a negative response if records are not available. If the requested information is unavailable, the Veteran and his representative should be apprised of such and given the opportunity to submit the requested information as required under 38 U.S.C.A. § 5103A(c) and 38 C.F.R. § 3.159(e). 2. Schedule the Veteran for a VA psychiatric examination to determine the current level of occupational and social impairment due to his service-connected PTSD. The VA examiner should review the relevant evidence in the claims folder, including the August 2011 private opinion by the Veteran's ARNP, as well as the Veteran's complaints and the clinical findings. All signs and symptoms of the service-connected PTSD should be reported in detail. If possible, a GAF score attributable solely to the PTSD should be assigned. The VA examiner should also render an opinion as to whether it is at least as likely as not that the Veteran's PTSD renders him incapable of obtaining and maintaining substantially gainful employment. A complete rationale must be provided for all opinions. The examiner is advised that advancing age, any impairment caused by conditions that are not service connected, and prior unemployability status must be disregarded when determining whether the Veteran currently is unemployable. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. Thereafter, schedule the Veteran for an appropriate VA medical examination to determine his employability. The claim folder must be made available to the examiner for review in conjunction with the examination. The examiner is asked to review the VA examinations of record discussing the impact of his PTSD, bilateral hearing loss, and tinnitus on his employability, and the August 2011 private opinion by the Veteran's ARNP. Any additional testing deemed necessary should be conducted and the examiner should elicit a history of the Veteran's employment experiences from him. The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran's service-connected disabilities (PTSD, bilateral hearing loss, and tinnitus), by themselves, render him incapable of obtaining and maintaining substantially gainful employment. The examiner is advised that advancing age, any impairment caused by conditions that are not service connected, and prior unemployability status must be disregarded when determining whether the Veteran currently is unemployable. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. Thereafter, the issue on appeal should be readjudicated. If either of the benefits sought on appeal are not granted, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate time period within which to respond thereto. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ K.J. ALIBRANDO 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).