Citation Nr: 1308161 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 09-11 247 A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio THE ISSUE Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Attorney David L. Huffman, Esq. WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from December 1967 to December 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by the Cleveland, Ohio RO, which denied an increased rating for PTSD. In March 2011 a Decision Review Officer hearing was held at the RO, and in October 2011 a Travel Board hearing was held before the undersigned; transcripts of both hearings are included in the claims file. At the Travel Board hearing the Veteran requested, and was granted, a 60 day abeyance period for the submission of additional evidence; additional mental health treatment records were received without a waiver of RO consideration. In September 2012, the Board remanded the matter for additional development. The appeal is REMANDED to the VARO. VA will notify the appellant if further action on his part is required. REMAND The Board has reviewed the Veteran's claims file as well as Virtual VA (VA"s electronic data storage system). On review of the record, the Board finds that this matter must again be remanded for evidentiary development. It is well-established in case law that when remand orders of the Board are not complied with, the Board itself errs in failing to insure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). In the September 2012 remand, the Board noted that the most recent VA treatment records in evidence were from April 2011, and that updated records of any VA treatment the Veteran may have received for PTSD are highly pertinent to this claim, are constructively of record, and must be secured by the RO. This instruction was not fulfilled. The Board then noted in the previous remand the Veteran's testimony that his PTSD symptoms had worsened since the most recent [December 2009] VA examination. The Board found that an October 2011 private psychological evaluation (submitted to the Board without a waiver of initial RO consideration) appears to support that the Veteran's PTSD has worsened. Accordingly, the RO was instructed to afford the Veteran a contemporaneous examination to assess the current severity of the disability. This instruction was also not fulfilled. Finally, the Board noted the findings in Rice v. Shinseki, 22 Vet. App. 447 (2009), wherein the U.S. Court of Appeals for Veterans Claims held, in essence, that when the matter of entitlement to a TDIU rating is raised by the record in a claim for increase, such matter becomes part of the increased rating claim. The Board noted in the previous remand that entitlement to a TDIU rating has been raised by the record here: the Veteran's attorney reported that the Veteran was laid off in December 2011 and he has not worked since that time. The Board instructed that the matter of entitlement to a TDIU rating had not been developed or adjudicated and remanded it for such action. On review of the record, it appears that none of the Board's September 2012 remand instructions were fulfilled, or even addressed. Virtual VA also includes no records pertinent to the remand. The Veteran is entitled to compliance with the Board's instructions. Accordingly, the case is REMANDED for the following action: 1. The RO should secure for the record copies of the complete updated (since April 2011) clinical records of any VA treatment the Veteran has received for PTSD. The Veteran should also be asked to identify (and provide authorizations for VA to secure records of) any private evaluations and/or treatment he has received. Complete records of all such evaluations/treatment must be secured for the record. 2. The RO should thereafter arrange for the Veteran to be examined by a psychologist or psychiatrist to assess the current severity of his service-connected PTSD. The Veteran's claims file (including this remand) must be reviewed by the examiner in connection with the examination, and the examiner must also be provided a copy of the criteria for rating mental disorders. Findings reported must include notation of the presence or absence of each symptom noted in the criteria for ratings above 50 percent. The examiner should also comment on the expected impact of the symptoms found on the Veteran's everyday social and occupational functions, and must explain the rationale for all opinions offered. 3. The RO should then re-adjudicate the increased rating claim on appeal. If it remains denied, the RO should issue an appropriate SSOC and afford the Veteran and his representative opportunity to respond. The RO should also fully develop and adjudicate the matter of the Veteran's entitlement to a TDIU rating (to encompass the determination regarding the increased rating for PTSD claim). If it is denied, the Veteran should be so advised, and advised of his appellate rights. If he files a notice of disagreement and a substantive appeal after a statement of the case (SOC) is issued, such matter should be returned to the Board, if in order, for appellate review. He should be advised that this matter will not be before the Board unless he initiates, and perfects, an appeal as to any negative determination by the RO regarding his entitlement to a TDIU rating. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matter 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 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). _________________________________________________ George R. Senyk 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).