Citation Nr: 1304261 Decision Date: 02/06/13 Archive Date: 02/19/13 DOCKET NO. 06-22 561 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to higher initial ratings for service-connected post-traumatic stress disorder (PTSD) with associated alcohol abuse, rated 30 percent prior to February 14, 2009, and 50 percent from that date. REPRESENTATION Appellant represented by: John S. Berry, Esquire ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The Veteran served on active duty from April 1966 to April 1969. This matter arises to the Board of Veterans' Appeals (Board) from an April 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa, that granted service connection for PTSD and assigned a 30 percent schedular rating effective December 4, 2003. The Veteran appealed for a higher initial rating. In January 2012, the Board granted a higher, 50 percent, schedular rating for PTSD effective February 14, 2009. The Board also granted service connection for a sleep disorder. The Board then remanded several other service connection claims and a claim for a total disability rating based on individual unemployability for development. The Veteran appealed the Board's decision concerning the initial staged rating for PTSD to the United States Court of Appeals for Veterans Claims (hereinafter: the Court). In August 2012, the Clerk of the Court remanded the case, pursuant to a joint motion for remand (JMR). The appeal is REMANDED to the RO (private attorney representation). VA will notify the Veteran and his attorney of any further action required. REMAND In JMR, the parties agreed that, in its January 2012 decision, the Board did not provide adequate reasons for its determination that the rating criteria for a disability rating higher than 30 percent for PTSD with associated alcohol abuse had not been met prior to February 14, 2009, and that the rating criteria for a disability rating higher than 50 percent had not been met on and after that date. In particular, the parties indicated that the Board did not adequately address and discuss the following symptoms: (1) "disheveled clothes", noted by a VA examiner in a February 2009 examination report; (2) "some restriction" of affect, noted by a VA examiner in a June 2006 examination report; and (3) non-persistent auditory hallucinations, noted by a VA examiner in the February 2009 examination report. See JMR, p. 5. The parties also indicated that the Board did not adequately address "vegetative signs of major depression," apparently referring to a notation by a VA examiner in a March 2005 examination report. However, the VA examiner actually noted that the Veteran "does not have vegetative signs of major depression", and therefore, the Board concludes that symptom, or lack thereof, need not be addressed in a future decision. See March 2005 VA examination report, p. 4. Finally, the parties noted that "the Board simply went through a laundry list of symptoms" in its January 2012 decision and "provided no analysis" of those symptoms in relation to the rating criteria. JMR, p 4. The Board has a duty to report in its decisions the symptoms shown on examination reports which it finds relevant to the rating criteria in cases involving the rating of service-connected mental disorders, and its fulfillment of that duty is a necessary part of determining the appropriate rating to be assigned in a given case. In this case, the Veteran's PTSD was most recently examined by VA in March 2011. In a December 2012 Memorandum, the Veteran's attorney requested that the case be remanded to the RO "so that Veteran (sic) be scheduled for a current psychological examination, which should report both his current condition, as well as explain from a review of the records when particular symptoms became manifest." December 2012 Memorandum, p. 8. Accordingly, this case is remanded to the RO for the following action: 1. The RO/AMC should ask the Veteran whether he has been treated for his service-connected PTSD since March 2011 and, if so, where and should assist him in obtaining all records of treatment, VA or private, that he identifies. 2. The RO/AMC should schedule the Veteran for a VA psychiatric examination. The Veteran's complete VA claims file and Virtual VA file should be made accessible to the VA examiner. The VA examiner must state on the report that the complete record was reviewed. Thereafter, the VA examiner must report all signs and symptoms necessary for rating the Veteran's disability under the rating criteria. The severity and frequency of any identified symptomatology should be discussed. If any other psychiatric disorder is identified on Axes I and/or II, the VA examiner should attempt to differentiate between the symptomatology associated with the Veteran's service-connected PTSD as opposed to any other diagnosed psychiatric disorder, to include the assignment of a separate Global Assessment of Functioning (GAF) score, as defined by the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV).. If it is not possible to make the above distinctions, the VA examiner should state so and indicate the reasons why such distinctions could not be made. The VA examiner should specifically opine as to whether the Veteran's service-connected PTSD is manifested by the following: (1) suicidal ideation; (2) obsessional rituals which interfere with routine activities; (3) speech intermittently illogical, obscure, or irrelevant; (4) near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; (5) impaired impulse control (such as unprovoked irritability with periods of violence); (6) spatial disorientation; (7) neglect of personal appearance and hygiene; (8) difficulty in adapting to stressful circumstances (including work or a worklike setting); (9) inability to establish and maintain effective relationships; (10) gross impairment in thought processes or communication; (11) persistent delusions or hallucinations; (12) grossly inappropriate behavior; (13) persistent danger of hurting self or others; (14) intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); (15) disorientation to time or place; and/or (16) memory loss for names of close relatives, own occupation or own name. Based on a review of the record, the VA examiner should state when the particular symptoms noted on examination first became manifest. See December 2012 Memorandum, p. 8. 2. The Veteran's attorney has requested that he be supplied with copies of "any new evidence, including but not limited to medical treatment reports and examination reports." See December 2012 Memorandum, p. 8. The RO should follow whatever procedure the Veterans' Benefits Administration has in place for dealing with such requests. 3. Following the above, the RO should review all the relevant evidence and re-adjudicate the claim. If the desired benefits are not granted, an appropriate supplemental statement of the case (SSOC) should be issued. The Veteran and his attorney should be afforded an opportunity to respond to the SSOC before the claims folder is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). Failure to report for an examination (if an examination is scheduled) may have adverse consequences on the claim. 38 C.F.R. § 3.655(b) (2012). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).