Citation Nr: 1305129	
Decision Date: 02/12/13    Archive Date: 02/21/13

DOCKET NO.  09-33 115	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUE

Entitlement to a higher initial disability rating (evaluation) in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD).


REPRESENTATION

Appellant represented by:	Hugh F. "Trey" Daly III, Esq.


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

William Alan Nelson II, Associate Counsel

INTRODUCTION

The Veteran, who is the appellant, had active service from January 1969 to 
July 1973.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.  In a December 2007 decision, the Cleveland RO granted service connection and assigned an initial 50 percent rating for PTSD, effective April 9, 2007, the date of grant of service connection (date of receipt of claim for PTSD).  

In March 2008, the Veteran entered a notice of disagreement (NOD) with the initial rating for PTSD assigned in the December 2007 rating decision.  Because the Veteran has disagreed with the initial rating assigned following the grant of service connection for PTSD, the Board has characterized the issue as one of entitlement to a higher initial disability rating.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability).  

The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence.  

By decision dated in April 2011, the Board denied a higher initial disability rating in excess of 50 percent for PTSD.  The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), and the Board's decision was vacated pursuant to a Joint Motion for Remand.  

The parties to the Joint Motion for Remand requested that the Court vacate that part of the Board's decision denying a higher initial disability rating in excess of 50 percent for PTSD.  The Joint Motion for Remand specifically stated that the Board needed to adequately address the Veteran's Global Assessment Functioning (GAF) scores and to analyze the Veteran's symptoms under the Court's decision in Mauerhan v. Principi, 16 Vet. App. 436 (2002).  

In October 2010, a travel Board hearing was held before a Veterans Law Judge who has since retired from the Board.  A transcript of this hearing is of record.  In October 2012, the Board sent the Veteran a letter informing him that the Veterans Law Judge who presided at his hearing in October 2010 is no longer with the Board and asking him if he wished to attend another hearing before a Veterans Law Judge who would render a determination in his case.  In correspondence received by the Board in October 2012, the Veteran indicated that he did not wish to attend another hearing.  

The issues of service-connection for schizophrenia and substance abuse, both claimed as secondary to service-connected PTSD, entitlement to an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1) for PTSD, and entitlement to a TDIU were remanded for additional development in April 2011.  Review of the claims file and electronic virtual VA file do not reveal that a supplemental statement of the case has yet been issued, nor has the case been certified to the Board.  Therefore, those issues are not ripe for appellate review at this time and will be the subject of a later Board decision, if necessary.  

The issue of a higher initial disability rating in excess of 50 percent for service-connected PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the RO.


REMAND

On review of all the evidence, lay and medical, as it bears on the relevant initial rating period, the Board finds that a remand is required in this case to ensure that there is a complete record upon which to decide the Veteran's appeal for a higher initial rating in excess of 50 percent for PTSD.  VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d) (2012).

The Veteran's most recent VA examination of PTSD took place in October 2008, over four years ago.  For this reason, VA will provide the Veteran a more contemporaneous VA examination to assess the current nature, extent, and severity of his service-connected PTSD.  Palczewski v. Nicholson, 21 Vet. App. 174 (2007); Snuffer v. Gober, 10 Vet. App. 400 (1997); Weggenmann v. Brown, 5 Vet. App. 281 (1993); VAOPGCPREC 11-95.

The most recent VA treatment records in the claims file are dated in July 2010.  Because the Veteran has indicated that he has continued to receive regular treatment for his PTSD since that time, there are likely additional VA treatment records pertinent to the claim that are outstanding.  Because these may include records that are pertinent to the Veteran's claim for a higher initial rating for PTSD, they should be obtained.  38 C.F.R. § 3.159(c)(2) (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992).

In Virtual VA is a January 2012 statement from the Veteran reporting he had begun to receive payments from the Social Security Administration (SSA).  It is not known, however, whether these are disability benefits (and what disability those benefits were based on) or retirement benefits.  Here, the SSA records are potentially pertinent to the Veteran's claims, and it cannot be determined at this point the significance of the SSA records, including whether they involve PTSD.  Accordingly, upon remand, the RO should attempt to obtain a copy of the decision granting SSA disability benefits and all supporting medical documentation.

Accordingly, the case is REMANDED for the following action:

1.  The RO should obtain and associate with the claims file records from the Cincinnati VA Medical Center in Cincinnati, Ohio, dated from July 2010 to the present.  

2.  The RO should obtain and associate with the claims file a copy of any SSA decision awarding or denying SSA benefits for the Veteran, copies of all medical records upon which any such SSA benefit award or denial was based, and a copy of any medical records associated with any subsequent disability determinations by the SSA for the Veteran.  All requests for records and their responses should be delineated in the claims folder. 

3.  The RO should notify the Veteran in accordance with 38 C.F.R. § 3.159(e) if the VA and/or SSA records are unavailable.  

4.  Thereafter, schedule the Veteran for a VA psychological examination to determine the current level of occupational and social impairment due to the service-connected PTSD.  The VA examiner should review the relevant evidence in the claims folder, as well as the Veteran's complaints and clinical findings.  All signs and symptoms of the service-connected PTSD should be reported in detail.  

The examiner should comment as to whether it is possible to distinguish the symptoms and effects of the service-connected PTSD, from those attributable to any other diagnosed psychiatric disability, specifically schizophrenia.  If it is not medically possible to do so, the examiner should clearly so state, indicating that the above-noted findings are indicative of the Veteran's overall impairment associated with his service-connected PTSD.  If possible, the GAF score attributable solely to the PTSD should be assigned.  

5.  After completion of the above and any additional development deemed necessary, the RO should adjudicate the issue of a higher initial disability rating in excess of 50 percent for service-connected PTSD.  If any benefit sought remains denied, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and should be afforded the opportunity to respond.  Thereafter, the case should be returned to the Board for appellate review.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  It is the Veteran's responsibility to report for any scheduled examination and to cooperate in the development of the case, as the consequences of failure to report for a VA examination without good cause may include denial of the claim.  38 C.F.R. §§ 3.158 and 3.655 (2012).

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).



____________________________________________
MICHELLE L. KANE
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).


Department of Veterans Affairs