Citation Nr: 1309941 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 10-42 904 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an evaluation in excess of 50 percent for post traumatic stress disorder (PTSD). 2. Entitlement to an evaluation in excess of 10 percent for right shoulder disability. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The Veteran served on active duty from June 1980 to June 1987 and from February 2003 to October 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which granted service connection for PTSD with an initial evaluation of 50 percent and denied an increased evaluation for right shoulder disability. It is noted that additional evidence was received in November 2010 and the RO received in August 2011 a waiver of consideration by the originating agency of this evidence. Thus, referral of this evidence to the originating agency for consideration in the first instance is not required. 38 C.F.R. § 20.1304(c). In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. 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 PTSD After careful review of the record, the Board finds that further development is required. In this case, the Veteran underwent a VA psychiatric examination in January 2009. A GAF score for 50 was assigned. In January 2009, the RO granted service connection for PTSD and assigned an initial evaluation of 50 percent. Since the January 2009 VA examination and the most recent adjudication of the claim in September 2010, additional medical evidence was submitted by the Veteran suggesting that her PTSD has worsened in severity. However, the Board may not rate the disorder based on this examination alone as the frequency and severity of those symptoms associated with service-connected PTSD versus nonservice-connected psychiatric disorders is not clearly delineated. Where the evidence of record does not reflect the current state of the disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Also, reexamination will be requested whenever there is a need to verify the current severity of a disability. 38 C.F.R. § 3.327(a). See also Snuffer v. Gober, 10 Vet. App. 400 (1997); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); VAOPGCPREC 11-95 (April 7, 1995) (when a veteran claims that her 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 her with a new examination). Therefore, in light of the recent evidentiary submission suggesting an increase in severity, remand is necessary for reexamination. Right Shoulder Disability The Veteran seeks an evaluation in excess of 10 percent for right shoulder disability. She submitted a claim for increase in October 2008 and underwent VA examination in December 2008. After review of report of examination dated in December 2008, the Board finds that it is inadequate for rating purposes. The Veteran's right shoulder condition is currently rated under Diagnostic Code 5099-5024, which requires that the condition be rated on limitation of the affected part. See 38 C.F.R. § 4.71a, Diagnostic Code 5024 (2012). While the December 2008 VA examination report includes range of motion findings, it further reflects that there pain on active motion without indicating the point at which pain begins. It is well-established that range of motion may be "functionally" limited by pain. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Therefore, the Board finds that remand is necessary for re-examination. Range of motion testing results for the right shoulder must include the point at which pain begins (in degrees) along with findings for any decrease in range of motion following 3 repetitive motion tests and increased pain. Accordingly, the case is REMANDED for the following action: 1. The RO or the AMC should undertake appropriate development to obtain a copy of any outstanding records pertinent to the Veteran's claims. 2. The Veteran should be afforded a VA examination to ascertain the current severity of service-connected PTSD. The claims file and any pertinent evidence in Virtual VA that is not contained in the claims file should be made available to the examiner. All symptoms associated with service-connected PTSD should be identified along with their frequency and severity. The examiner should indicate whether the Veteran's disability more nearly reflects "Occupational and social impairment with reduced reliability and productivity;" or "Occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood;" or "Total occupational and social impairment." See 38 C.F.R. § 4.130. Diagnostic Code 9411. 3. The Veteran should be afforded a VA examination to determine the current severity of her right shoulder disability. The claims file and any pertinent evidence in Virtual VA that is not contained in the claims file should be made available to the examiner. The RO or the AMC should ensure that the examiner provides all information required for rating purposes. In particular, the range of motion testing results for the right shoulder must include the point at which pain begins (in degrees) along with findings for any decrease in range of motion or increased pain following 3 repetitions of motion. 4. The RO or the AMC should also undertake any other indicated development and thereafter should readjudicate the Veteran's claims. If the benefits sought on appeal are not granted to the Veteran's satisfaction, a Supplemental Statement of the Case should be issued to the Veteran and her representative, and they should be afforded the requisite opportunity to respond before the case is returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran 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). _________________________________________________ MICHAEL A. PAPPAS 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).