Citation Nr: 1305255 Decision Date: 02/13/13 Archive Date: 02/21/13 DOCKET NO. 10-31 890 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability evaluation based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran served on active duty from March 1969 to March 1972. This matter comes to the Board of Veterans' Appeals (Board) from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Following the issuance of the July 2010 Statement of the Case (SOC), relevant evidence in the form of VA treatment records were associated with the clams file. In a January 2013 letter, the Veteran, via his appointed representative, waived initial RO consideration thereof. Accordingly, the Board may consider this evidence in the first instance. See 38 C.F.R. § 20.1304(c) (2012). In the case of Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans' Claims (Court) held, in substance, that every claim for an increased evaluation includes a claim for a TDIU where the Veteran claims that his service-connected disabilities prevent him from working. In this case, the Board notes that the Veteran has put forth statements indicating that he believes his service-connected PTSD renders him unemployable. Accordingly, in light of the holding in Rice, the Board has characterized the issues on appeal so as to include entitlement to a TDIU. 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 In furtherance of attempting to substantiate his claim for service connection of PTSD, the Veteran submitted VA Form 21-4142s dated in July 2009 and December 2010 for the New York State Division of Veterans' Affairs related to psychiatric treatment. In the July 2009 form 21-4142, the Veteran indicated that there were records located at this facility "for 14 years," although he provided no specific dates of treatment, etc. In the December 2010 form 21-4142, the Veteran likewise provided no specific dates of treatment, but indicated that he had treatment for "11-14 years" at this facility. It does not appear that the RO ever acted on these releases and attempted to obtain these records, and they have not been associated with the claims file. The authorizations have expired and the New York State Division of Veterans' Affairs is not a U.S. Federal Government entity. VA will make reasonable efforts to obtain relevant records not in the custody of a Federal department or agency, to include records from private medical care providers. 38 C.F.R. § 3.159(c)(1) (2012). Upon remand, the Veteran must be asked to execute a VA Form 4142, so that VA may attempt to obtain the records from the New York State Division of Veterans' and associate them with the claims file. The Veteran should also be advised that he may alternatively submit these records. Also, as noted above, the Veteran seeks a TDIU based upon his service-connected PTSD. Upon remand, he should be provided notice of how to substantiate a claim for a TDIU. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159. Lastly, the Board notes that in November 2009 the Veteran was last provided a VA examination. At the time of this examination, the Veteran was assessed as having PTSD and assigned a GAF score of 55, although March 2009 and January 2012 private treatment records document an assigned a GAF score of 39. A December 2010 VA treatment note documents an assessed GAF score of 45. See Richard v. Brown, 9 Vet. App. 266, 267 (1996), observing that GAF scores ranging from 51 to 60 reflect moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). A GAF of 41-50 is defined as serious symptoms (e.g., suicidal ideation, severe obsessional ritual, frequent shoplifting), or any serious impairment in social, occupational, or school functions (e.g., no friends, unable to keep a job). A GAF score of 31-40 reflects some impairment in reality testing or communications (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school). When it is indicated that the severity of a service-connected disability has increased since the most recent rating examination, an additional examination is appropriate. See Caffrey v. Brown, 6 Vet. App. 377 (1995); Green v. Derwinski, 1 Vet. App. 121 (1991). Nonetheless, the Board is not required to remand an appealed disability benefit claim solely because of the passage of time since an otherwise adequate examination report was prepared. VAOPGCPREC 11-95 (April 7, 1995). As the decrease in GAF score from 55 to as possibly low as 39 indicates indicate possible worsening of the Veteran's PTSD, the Veteran should be afforded a new VA examination. While the further delay of this case is regrettable, due process considerations require such action. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with notice of the information and evidence necessary to substantiate a claim for a TDIU. This notice must also inform the Veteran of which information and evidence, if any, that he is to provide to VA and which information and evidence, if any, that VA will attempt to obtain on his behalf. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159. 2. Forward the Veteran a VA Form 21-4142 for his execution and inform him of the necessity of executing this release and the consequences of failing to cooperate with VA's reasonable efforts to obtain medical records from New York State Division of Veterans' Affairs. If the Veteran returns the release, attempt to obtain these records. Perform any follow-up as necessary and document any negative results, should the Veteran request VA's assistance in attempting to obtain these records. 3. After the development directed in paragraphs 1 and 2 has been completed to the extent possible, schedule the Veteran for a VA psychiatric examination to determine the current severity of his service-connected PTSD. The claims folder, and any additional evidence obtained, must be made available to the examiner for review. All tests and studies deemed necessary by the examiner should be conducted, in order to obtain, as accurately as possible, a true picture of the nature and extent of any current PTSD. These tests should include validity testing of the Veteran's responses. The tests and studies performed, and their results, should be discussed in the examination report. The examiner should report all signs and symptoms necessary for rating the Veteran's PTSD under the applicable rating criteria. The examiner must discuss the effect, if any, of the Veteran's PTSD on both his social and industrial adaptability. The examiner should assign a Global Assessment of Functioning (GAF) score for the Veteran's PTSD consistent with the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM- IV) and explain the significance of the score. A complete rationale for any opinion expressed should be provided. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion 4. After the development requested above has been completed to the extent possible, in addition to any indicated necessary additional development, review the record and readjudicate the claims on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto before this case is returned 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). _________________________________________________ BETHANY L. BUCK 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).