Citation Nr: 1309992	
Decision Date: 03/25/13    Archive Date: 04/02/13

DOCKET NO.  09-12 759	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Hartford, Connecticut


THE ISSUE

Entitlement to an increased rating for post-traumatic stress disorder (PTSD), currently evaluated as 30 percent disabling.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

J. Davitian, Counsel


INTRODUCTION

The Veteran served on active duty from April 1962 to April 1964. 

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied an increased rating for PTSD. 

In a February 2011 decision, the Board denied an increased evaluation for PTSD.  The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court).  In an April 2012 Memorandum Decision, the Court set aside the Board's February 2011 determination that the Veteran was not entitled to an evaluation in excess of 30 percent for PTSD.  The Court remanded the matter for further proceedings consistent with its decision.  

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

The Board finds that this claim requires additional development.  

Statutes and regulations require that VA assist a claimant in providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim.  38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012).  In addition, the Court has held that when a veteran claims that a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition, VA must provide a new examination.  See Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992).  

In this case, the most recent VA examination for the Veteran's service-connected PTSD was conducted in May 2008.  Thus, another VA examination is necessary. 

In addition, VA has a duty to assist the appellant in obtaining evidence necessary to substantiate a claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(2) (2012).  There are also heightened obligations to assure that the record is complete with respect to Federal Government records.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  VA treatment records are deemed to be constructively of record in proceedings before the Board.  Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).

In this case, a September 2012 rating decision relates that VA electronic records from the VA Connecticut Healthcare System dated through September 6, 2012, had been uploaded to Virtual VA.  However, the most recent VA treatment record in the Veteran's Virtual VA eFolder is dated November 7, 2011.  Thus, any VA treatment records not in the record before the Board should be obtained. 

Accordingly, the case is REMANDED for the following action:

1.  Obtain and associate with the claims file and the Veteran's Virtual VA eFolder copies of all VA medical records dated after November 7, 2011, to include those from the VA Connecticut Healthcare System.  

2.  Then, schedule the Veteran for an examination by an appropriate VA examiner to determine the nature and current level of severity of the Veteran's service-connected PTSD.  The claims file must be made available to the examiner.  The examination should comply with VA protocols for the appropriate examination.  A complete rationale for all opinions expressed must be provided.

3.  Then, readjudicate the Veteran's claim.  If the benefit sought on appeal remains denied, the appellant and his representative should be provided a supplemental statement of the case and afforded an opportunity to respond.  The case should be returned to the Board for appellate review.

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).



_________________________________________________
MICHAEL MARTIN
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).