Citation Nr: 1309289 Decision Date: 03/19/13 Archive Date: 04/01/13 DOCKET NO. 09-15 233A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a lumbar spine disability. 2. Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD). 3. Entitlement to a total disability evaluation based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant, his spouse and his son ATTORNEY FOR THE BOARD G. A. Wasik, Counsel INTRODUCTION The Veteran had active duty service from May 1951 to March 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified at a Board hearing at the RO in September 2011. The Veteran's Law Judge who conducted the hearing is no longer employed by the Board. In November 2012, the Veteran was informed of this fact and that he could request to appear for another hearing to be conducted by a Veteran's Law Judge who will decide the claim. In December 2012, the Veteran indicated that he did not desire to attend another hearing. The issue of entitlement to an increased rating for PTSD was originally before the Board in November 2011 when the claim was denied. The Veteran appealed the Board's November 2011 denial of an increased rating for PTSD to the United States Court of Appeals for Veterans Claims (the Court). In July 2012, the Court granted a Joint Motion for Remand and remanded the claim back to the Board for further action consistent with the Joint Motion. Also before the Board in November 2011 were the issues of entitlement to TDIU and whether new and material evidence has been received to reopen the claim of entitlement to service connection for a lumbar spine disability. The Board remanded these claims to cure a procedural defect. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 on his part. REMAND The Veteran is claiming entitlement to a rating in excess of 30 percent for his service-connected PTSD. The last time the disability was evaluated by VA for compensation and pension purposes was in February 2010. At that time, the examiner opined that the PTSD symptoms were productive of only signs and symptoms that were transient or mild with decrease in work efficiency and ability to perform occupational tasks only during periods of significant stress. Significantly, in April 2011, the Veteran wrote "I cannot function with a normal life now. Can not express all the things that were meaningful to me no longer exist in my life." He further indicated that his relationships and personal life have deteriorated. He wrote that he tried to go back to work but he was unable to deal with people anymore. This statement implies a greater level of symptomatology than that noted at the time of the February 2010 VA examination. The Board finds the April 2011 letter from the Veteran indicates that he reported he had an increase in mental problems which has occurred subsequent to the most recent VA examination for compensation and pension purposes. When a veteran claims that his condition is worse than when originally rated, and when the available evidence is too old for an evaluation of the claimant's current condition, VA's duty to assist includes providing him with a new examination. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). The Veteran should accordingly be afforded a VA examination to determine the current degree of severity of the service-connected PTSD. In November 2011, the Board remanded the issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for a lumbar spine disorder in order to have a statement of the case issued and to allow the Veteran to perfect an appeal. The Board's review of the claims file demonstrates that, subsequent to November 2011, no statement of the case has been promulgated for the lumbar spine disorder claim. The Court has held "that a remand by this Court or the Board confers on the veteran or other claimant, as a matter of law, a right to compliance with the remand orders." Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, compliance with the terms of the remand is necessary prior to further appellate review, and if not, "the Board itself errs in failing to ensure compliance." Id. The Veteran must be furnished a pertinent statement of the case for the issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for a lumbar spine disorder. The Veteran is claiming entitlement to TDIU. The Board remanded the issue in November 2011, finding that it was inextricably intertwined with the new and material claim for the lumbar spine disorder. The Board finds the TDIU claim is now inextricably intertwined with both the increased rating PTSD claim and the new and material lumbar spine claim, both of which are being remanded. Thus adjudication of the TDIU claim must be deferred again. Prior to the examination, the RO or the Appeals Management Center (AMC) should undertake appropriate development to obtain all outstanding treatment records pertinent to the issues on appeal. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO/AMC must review the record and ensure compliance with all notice and assistance requirements set forth in the VCAA by issuing the Veteran an additional notification letter if required. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. 2. After the above-mentioned development has been completed to the extent possible, the Veteran should again be afforded a VA psychiatric examination to evaluate the nature and severity of his service-connected PTSD. The claims folders and a copy of this Remand must be made available to and reviewed by the examiner in conjunction with the examination. Based on the medical findings and a review of the claims files, the examiner should address the level of social and occupational impairment attributable to the Veteran's PTSD. The examiner must provide accurate and fully descriptive assessments of all clinical findings resulting from the Veteran's service-connected PTSD. If it is not possible to differentiate between impairment resulting from PTSD and impairment resulting from any other nonservice-connected disorder, the examiner should state this in the report. The examiner should assign a numerical code under the GAF scale provided in the Diagnostic and Statistical Manual of Mental Disorders, 4th Edition, and specifically indicate whether the GAF designation incorporates impairment caused by any non-service-connected psychiatric disorder. In addition to assessing the Veteran's current psychiatric status and symptomatology, the VA examiner should conduct a thorough review of the medical evidence of record and, to the extent possible, provide a medical opinion as to the evolving nature and severity of the Veteran's PTSD from August 2007 to the present. The examiner should also opine as to the Veteran's ability to obtain gainful employment due to his PTSD. The examiner should set forth the complete rationale for all opinions expressed and conclusions reached, in a legible report and clearly indicate what records were reviewed in reaching such opinions. If the examiner is unable to provide the requested information or opinions with any degree of medical certainty, the examiner should clearly indicate that. 3. Thereafter, the RO should readjudicate the claims on the merits. If the benefits sought for which an appeal has been perfected are not granted, the Veteran and his representative should be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 4. The AMC/RO should issue a statement of the case for the issue of whether new and material evidence has been received to reopen the claim of entitlement to service connection for a lumbar spine disability. Only if the Veteran perfects an appeal should a claim be certified to the Board and any necessary development should be conducted. The appellant and his representative have 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). _________________________________________________ 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 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).